In early November, the Senate began a lame duck session after voters had elected Joe Biden president yet apparently retained a GOP upper chamber majority. Those elections followed four years in which President Donald Trump and the Republican chamber majority have appointed three extremely conservative, young Supreme Court justices, fifty-four similar appellate court judges, and 172 rather analogous district jurists.
They confirmed nominees by violating the rules, practices, and customs that have long governed judicial selection and that yielded well qualified, mainstream jurists. For instance, the president minimally consulted senators who represented states where vacancies arose, even though they know more lawyers who could be powerful judges. Trump also basically excluded the ABA from the selection process, although chief executives in office since the 1950s, except President George W. Bush, have relied substantially on its valuable evaluations and ratings.
The chamber did not rigorously analyze many nominees tapped or robustly question them in Judiciary Committee hearings. The panel also developed a “circuit exception” to the “blue slip” policy — that allowed both senators from jurisdictions with circuit vacancies to halt nominee processing — even though Republicans and Democrats honored circuit slips all eight years in Barack Obama’s presidency, which comprised the most recent, applicable precedent.
These selection processes imposed numerous detrimental consequences. They enabled Republicans to appoint many very conservative nominees, who dramatically altered the judiciary’s ideological balance, especially implicating the Supreme Court and the circuits, while eroding the process of selection, which had afforded impressive, mainstream jurists. The GOP’s emphasis on confirming appeals court nominees meant that it neglected district vacancies which skyrocketed to practically 140. Those factors also jeopardized ideological balance, diversity vis-à-vis ethnicity, gender, sexual orientation, independence, and experience, the selection process and citizen respect for it, the judiciary, the executive and the Senate.
In Congress’ lame duck session, Trump nominated two appellate candidates, and the Senate has already confirmed one and ten district judges, eight in jurisdictions which two GOP senators represent. With the chamber’s Dec. 14 return, the majority continued effectuating the pledge of its leader, Mitch McConnell (Ky.), to “leave no vacancy behind.” However, since 1896, the party that lost the presidential race has confirmed merely one circuit judge after the elections.
The phenomena canvassed above mean that Trump should refrain from nominating more choices for the twenty-three openings that lack nominees, in deference to the record eighty million Americans, who distinctly spoke by choosing a new president, and the minimal time which remains in the 116th Congress that does not allow rigorous candidate vetting. Because Trump has proceeded, the Senate must eschew processing nominees in the lame duck session, as voters have indicated that they prefer Joe Biden to select judges. If the GOP chamber majority leaders, nevertheless, keep reviewing nominees, Democratic and Republican senators must insist that none be considered until the Senate meaningfully evaluates the prospects by convening rigorous hearings and discussions before committee votes and robust chamber floor debates ahead of confirmation ballots.
Carl Tobias is the Williams Chair in Law, University of Richmond.