Since I laid out the practical political considerations confronting senior-eligible judges who wait to elect senior status later in the year, three top-shelf circuit judges have announced their intention to leave active status: Chief Judges Jeff Sutton and Debra Livingston and Judge Timothy Tymkovich. That was obviously a welcome development, and I’m sure the White House is hard at work identifying replacements to nominate expeditiously. Since then we have also had the sort of “known unknown” political developments I warned of in that post.
In yesterday’s Texas primary election, the state’s senior senator, John Cornyn, who serves on the Judiciary Committee, fortunately exceeded expectations and beat scandal-plagued state Attorney General Ken Paxton in the first round. (They’ll face each other in a runoff election in May.) I say “fortunately” not only for electability reasons but also for judges.
People on the right like to complain when their elected representatives do the right thing “only” because they’re worried about their reelection. That’s actually a feature of representative government and not a bug. Madison said that if men were angels, we wouldn’t need laws; the same goes for democracy. It would be nice if we could assume all public figures will do the right thing for the right reasons, but our system of government is predicated on the question, “What if they don’t?” In that case you run them out of office.
The problem is that people run out of office are often still in office for the rest of their term. For example, it has been asked in reporting, now that Wesley Hunt and Dan Crenshaw are without seats to defend, will they bother to vote? It’s not that they don’t believe in what the House Republicans are doing so much as they now have different personal incentives than those placed on them by reelection. This is, incidentally, why it’s extraordinarily difficult to get defeated or retiring senators to vote consistently during a lame duck.
Lame-duck members can also decide to use their remaining time pushing what they view as sound policy without the constraints of electoral politics. Just yesterday Thom Tillis threatened to start blocking nominees until he gets answers about ICE from Kristi Noem. There have been calls for Thune to pressure him into backing down, but that’s far easier said than done.
We faced exactly the same issue four years ago when my old boss, Arizona Senator Jeff Flake, started taking judges hostage for policy reasons. (At the time I had left his office and was running judicial nominations at DOJ.) First, Flake locked up Britt Grant in committee in a bid for Cuba-sanctions relief, only releasing her when the Kavanaugh nomination made that untenable. Then, later, he held dozens of judges on the floor demanding a vote on legislation protecting Robert Mueller.
Without getting into details and without criticizing Flake, who thought he was doing the right thing, all we could do was wait him out. It wasn’t for lack of trying. As a practical matter, when a senator in that position digs in, your only real tools are persuasion and time.
With Tillis it’s different in that, for now, he just wants information. Holds for information are a venerable Senate tradition, and there’s no reason he can’t be accommodated. The things Flake wanted he wasn’t going to get — and he didn’t get them. A challenge with Tillis will be if his appetite grows as the year progresses.
Another will be if he is joined in his electoral liberation by a John Cornyn or a Bill Cassidy (the Louisiana senator who is facing a Trump-endorsed primary opponent). To be clear, Cornyn is nothing if not steady and will be the same in June as he is today regardless of what happens in the runoff. But does that mean he’ll always show up? Again, it’s a question of incentives built into our system, not the individual politician. Cassidy, on the other hand, would be a very dangerous customer without the constraints of pending election. There’s always legislation he wants, and he’s very active in trying to get it.
In any event, in the last two weeks alone we have found ourselves in a world where the Judiciary Committee swing vote is now open to taking hostages for unrelated policy goals. Depending on primary election results, he may be joined by another lame duck on committee and still another on the floor, adding more political variables without solutions. The political situation in the Senate has already gotten worse in 14 days.
When you throw in two Republicans running for governor — and therefore subject to very different political motivations — and a half dozen Republicans in serious reelection bids, you have an extraordinarily uncertain situation on the Senate floor as November approaches.
In other words, the window is closing faster than people realize.