Bench Memos

Law & the Courts

Next Week’s Senate Elections

Pardon me for spelling out the obvious, but next week’s Senate elections will have huge ramifications for judicial confirmations in 2019 and 2020. (Much less so, if at all, for the 57 or so judicial nominees who are already, or who will soon be, on the Senate floor for votes in the closing weeks of 2018.)

Republicans currently have a 51-49 margin in the Senate. If the Republicans retain or expand their control of the Senate, you can expect confirmations to the lower courts to continue at roughly the same impressive pace as over the past two years. Conversely, if Democrats gain control of the Senate, it is unlikely that any nominees would be confirmed, unless they are basically selected by home-state Democratic senators.

I’d ballpark at 15% or so the probability that another Supreme Court vacancy will arise in the next two years. If a vacancy does arise, the path to confirmation will be much smoother if Republicans increase their numbers to 52 or more. And there will be no path to confirmation for a judicial conservative if Democrats take control of the Senate.

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