Bench Memos

Law & the Courts

Huge Victory for Judicial Confirmations

From the narrow perspective of judicial confirmations, yesterday’s elections were a huge success.

Senate Republicans appear to have increased their margin of control from 51-49 to 54-46. Those additional seats provide a lot of space in the event that there is another Supreme Court vacancy over the next two years. Simply put, it ought to be an easy matter to confirm another outstanding judicial conservative (or two) to the Court.

That increased margin, of course, also will make it easier to confirm lower-court judges. That in turn might lead to additional vacancies, as some retirement-eligible judges might decide that now is a good time to take senior status.

The increased margin in the next Congress also makes it more likely that Senate majority leader Mitch McConnell will be able to get some 50 or 60 additional judicial nominees confirmed in the closing weeks of this year. How much of an incentive, after all, do Senate Democrats have to try to delay these confirmations, and how much leverage do they have left?

Jon Tester barely managed to hold on to his Montana seat, and it now seems (subject to recounts) that all the other red-state Democrats who voted against the Kavanaugh nomination (Donnelly, Heitkamp, McCaskill, Nelson) were voted out of office, while the one red-state Democrat who voted for Kavanaugh (Joe Manchin) was re-elected. Senate Democrats will have to grapple with the political costs of the ways they’ve gone about trying to defeat quality nominees. (That might matter more for the 2020 presidential election than for the Senate races in 2020: Democrats might figure that the only red-state Democrat up for re-election in 2020—Doug Jones in Alabama—is likely to lose anyway.)

Finally, with the Democrat takeover of the House, the near-certainty of legislative gridlock makes it even more likely that the White House will press judicial nominations for political victories.

[11/8: I have modified this post to account for Senator Tester’s victory.]

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