Over at Public Discourse I provided a run-down of where judicial nominations currently stand. I looked at where Trump is numerically, the profile of his nominees, and how he got his current vacancies.
I also spent a fair amount of time on the relative dearth of vacancies and argued that this is unfortunate given that the current Senate is the best in a century when it comes to confirming strong conservatives. I concluded that any retirement-eligible judge who wants to be replaced by a conservative basically has 15 months to do so at which point things become very uncertain.
Of course there’s a flipside to any such calculation: what if a judge doesn’t want to be replaced by a political crony or presidential loyalist? This has been widely speculated as a reason why judges won’t retire or elect senior status. I’m skeptical, to put it mildly. Nearly all the eligible, Republican appellate judges today were eligible in 2020 and still didn’t go anywhere—back when Emil Bove was but a glimmer in President Trump’s eye.
But, for the sake of argument, let’s assume this is a valid concern and that judges—and perhaps justices—are wary of giving their seats over to a president they don’t trust, only to have their replacements then go through a Senate that is “craven” in its “capitulation” to his “Caesarism.”
Even on this assumption, the concern is still misplaced. The very reason the Senate is currently so strong on judges—Mitch McConnell is the swing vote—will also prevent a latter-day Harriet Miers or Abe Fortas. McConnell and Thom Tillis—votes 50 and 51—owe nothing politically at this point to the president; they are free to vote their judicial consciences.
That they haven’t yet only means that they didn’t credit the arguments against Bove. McConnell and Tillis have, elsewhere, been willing to buck party discipline when they felt compelled to do so. The only disagreement between them and their critics is when they should defy the president, not whether. I have no doubt that a judicial nominee they regard as actually egregious would prompt just such an intervention from them. We simply haven’t seen such a nominee (and I doubt that we will).
The upside is that the situation is even better than what I explained at Public Discourse. The Senate is perfectly positioned to confirm the best kind of judicial nominations while it will not be a rubber stamp for the worst.
There is one significant caveat: the Senate Calendar. The closer the Senate gets to the midterm elections the more the question shifts from the merits of the nominee before the Senate to “compared to what?”
So, say, a hypothetical Supreme Court nomination on the timeline of Brett Kavanaugh or Amy Barrett—fall confirmation—would be seen as the last train out of the station before the midterms. At that point it wouldn’t be a simple vote-of-conscience for McConnell but a calculation: “if I defeat this nominee, will there be time to confirm another before the next Congress? If not, then what?” The answers are “probably not” and “nothing good.” A lame-duck confirmation of an alternative pick is virtually impossible, and the future composition of the Senate will be uncertain, at best.
In that case the smart play for McConnell may be simply to confirm an otherwise unacceptable pick because confirming a Harriet Miers is better than risking a lost seat. The same basic reasoning applies to the courts of appeals: once you reach September 2026 for confirmation, then the McConnell safety valve may be out of service.
A retirement-eligible judge, then, who wants to be replaced by a strong conservative is in the best position to have that happen in modern history—if he can be replaced by September 2026. But if that retirement-eligible judge worries—correctly or not—about the caliber of such a conservative replacement, the Senate is likely to enforce high standards provided that the vacancy has a long runway until the midterms. The choice, in the end, is in the hands of the judges.