My colleague Ed Whelan posted recently about the relative paucity of new judicial vacancies. Ed concludes, “Anyone who is planning to go senior or retire probably would have said so by now, in order to provide ample lead time to have the seat filled before the Senate elections in November 2026. So it’s reasonable to predict that there will be no, or hardly any, vacancies from this group this year.”
I hope he’s wrong about the decisions that judges have already made — and I am always careful not to assume that United States judges have a sophisticated understanding of the Senate calendar. But Ed is assuredly right that judges are running out of that “ample lead time to have the seat filled” in this Congress. To understand why, you need to look at both the calendar itself and also how it is likely to be occupied politically.
To do that, it’s best to put yourself in the shoes of the Democrats. What’s their goal? Delay. From the perspective of Democratic leadership, every day brings them closer to sine die adjournment, after which point they can almost certainly stop Trump’s legislative initiatives with a Democratic House and possibly stop his judicial appointments with a Democratic Senate. It’s just a question of making it to that point with as little damage from Republicans as possible.
Indeed this is the strategy we employed in the first two years of Joe Biden. In my office in the Capitol I had a Senate calendar with the likely Judiciary Committee hearing and mark-up dates circled. Each week I’d cross them off: one fewer slate of judges was possible. The Ketanji Jackson nomination ate up a lot of that time in committee while the so-called Inflation Reduction Act and the CHIPS bill ate up floor time going into the August recess.
Actually that’s not quite accurate: Because of the 50–50 composition of the Senate, I was counting down to Election Day, not adjournment. Early in 2022 I began to coordinate with Chairman Grassley’s nominations staff on what the equally divided Judiciary Committee could mean in the lame duck. Because the committee was evenly split, if Republicans boycotted a markup, Democrats would be unable to report out nominees. Democrats had tried boycott tactics during Amy Barrett, but we beat them by having a majority of the committee present and voting on her nomination. Because of that fight, we had actual precedent on point that you must have a majority of the committee present and voting to violate committee rules.
With no majority on the Judiciary Committee, Democrats could not use that precedent, and their nominees would be bottled up in committee. We, therefore, concluded that if we made it through the elections — and Republicans took the Senate — we could institute a boycott of markups in the lame duck, thereby leaving over a dozen circuit vacancies unfilled going into the next Congress, where the White House would need to treat with Mitch McConnell to fill them.
We had high confidence that we could do this without Kyrsten Sinema and Joe Manchin changing the rules to allow nominees to be discharged from committee at a simple majority, in part because they had not yet done so to Rand Paul and Pat Toomey, who used boycotts to stall bad nominees in the Small Business Committee and the Banking Committee. Nuking the motion to discharge during a lame duck for some leftist judges would have provided Sinema and Manchin no more upside than doing so for the deputy administrator of the Small Business Administration.
The same plan also wound up being floated as a way to derail Biden’s Supreme Court nominee. Of course had Ketanji Jackson, a left-wing but mainstream nominee with bipartisan support, been blocked in committee, Schumer would have gone right to Sinema and Manchin and demanded that they change the rules to allow a discharge from committee at 51. While Sinema and Manchin (but mostly Sinema) were strong on preserving Senate rules, they had their limits — and Schumer always pushed them. This gambit would have ended either with the motion to discharge being set at 51 (and essentially abolishing the committee process) or with a Republican showing up to the markup to prevent that outcome while alerting Democrats to our willingness to employ this tactic later.
Luckily no one of consequence paid attention to the Supreme Court suggestion, and we were able to move on with our strategy, counting down the days until we’d get the whip hand. We threw as much sand in the gears as possible to increase the number of nominees we could bottle up, while at the same time making sure that the Ninth Circuit nominee from Arizona would not be one such nominee, thereby removing any incentive from Sinema to nuke the rules.
In the end, though, you can only control what you can control. We didn’t win the Senate, and the plan went nowhere. Had the election gone otherwise, though, we would have been fully prepared to take advantage of the situation through our long-term strategy of delay.
This is what Democrats are doing now. They, too, are counting down the days and weeks until adjournment while treating each unproductive day in the Senate as a triumph.
Given how few judicial nominees (and vacancies) there are, they’re likely more interested in stopping the Republican legislative agenda through delay than stopping judges. This strategy, though, will have collateral effects on judicial nominees that senior-eligible judges should bear in mind.
There are 21 session weeks until the midterms. I’ve explained before what the timing for judicial nominees would look like during the course of those weeks, but that was assuming business as usual — and it won’t be.
For one thing, we’re already in a partial government shutdown. Resolving that will take up some floor time. Starting in September we’ll be looking at a real government shutdown. That will certainly eat up floor time. In the unlikely — but possible — event that there is a Supreme Court vacancy this summer, that would probably prevent hearing activity in July and September while also eating up floor time in September — as we, again, approach a shutdown. Another reconciliation package is also unlikely, but it, too, would consume much of the summer.
Keep in mind that during all of these exercises, the goal of Democrats will be to drag them out to delay other activity. Which is to say that there are a half a dozen likely inflection points that will be used by Democrats to consume the relatively little time available for judicial nominations before the midterms.
This is ignoring entirely the possibility of a Talking Filibuster Quagmire. It almost certainly won’t come to pass that the Republican conference will join hands and drive off that cliff, but stranger things have happened. What if it does?
Obviously there would be no floor consideration of judicial nominees during the filibuster. But interestingly there would also be no consideration of them in committee either. Under the Senate rules, committees can’t meet more than two hours after the Senate opens on a given day absent unanimous consent (this is known as the two-hour rule). Because a talking filibuster would be one legislative day that goes on for weeks or months at a time, no committees could meet during its pendency.
Well, that’s only one month, right? Republicans will find their backbones and pass the SAVE America Act and we’ll be back to considering judges in April.
This ignores the power of majoritarianism. Once Republicans realize that this one weird trick lets them pass bills without Democrats, they’d be crazy not to use it to, say, end the impasse on DHS funding. What about permitting? Republicans have been trying to do that for years, and now they will be able to get it done without catering to the whims of Sheldon Whitehouse. That’s another talking filibuster. And, of course, what better way to prevent a government shutdown after the Senate returns in September than through yet another talking filibuster. Why deal with Democrats when you can enact all the DOGE cuts you can while keeping 50 votes willing to exhaust the Democrats? The base will demand it, and we all know that midterm elections are base elections. All the while committees won’t be meeting and nominations will pile up.
This is obviously an untenable situation and part of why the Talking Filibuster Quagmire doesn’t pass the smell test, but that’s neither here nor there. The unlikely event of its proponents succeeding is still another known unknown that would clog the floor indefinitely.
What’s the takeaway? If you’re eligible for senior status and want to go this year, waiting does your successor no favors. Time is shorter than it seems. More importantly, Democrats — and, it seems, some Republicans — will be doing everything they can to consume that little time to the detriment of judicial nominations.
If it were me, I’d give the White House and Senate leadership as much flexibility as possible in navigating the calendar.