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Dems’ Nuclear Option will allow Trump to fill over 100 court vacancies quickly

Dems’ Nuclear Option will allow Trump to fill over 100 court vacancies quickly

And Democrats have no one to blame but themselves.

We’ve written many times about the Democrats’ destruction in 2013, under the leadership of Harry Reid, of the filibuster for judicial nominees below the Supreme Court level.

Most of the columns written recently, including by us, discuss whether Republicans will extend that “Nuclear Option” to the current Supreme Court vacancy.

And certainly, that’s very important.

But there is another way in which Harry Reid’s gambit is going to hurt Democrats.

There currently are over 100 vacancies in the federal appeals and trial courts.

As Philip Rucker and Robert Barnes at WaPo write, that will allow Donald Trump to reshape the federal judiciary rather decisively and quickly, Trump to inherit more than 100 court vacancies, plans to reshape judiciary:

Donald Trump is set to inherit an uncommon number of vacancies in the federal courts in addition to the open Supreme Court seat, giving the president-elect a monumental opportunity to reshape the judiciary after taking office.

The estimated 103 judicial vacancies that President Obama is expected to hand over to Trump in the Jan. 20 transition of power is nearly double the 54 openings Obama found eight years ago following George W. Bush’s presidency.

Confirmation of Obama’s judicial nominees slowed to a crawl after Republicans took control of the Senate in 2015. Obama White House officials blame Senate Republicans for what they characterize as an unprecedented level of obstruction in blocking the Democratic president’s court picks.

The result is a multitude of openings throughout the federal circuit and district courts that will allow the new Republican president to quickly make a wide array of lifetime appointments….

Although Trump spoke little on the campaign trail about the many vacancies on lower courts, remaking the federal judiciary overall has been a priority of his and of Vice President-elect Mike Pence, aides said….

Trump transition officials declined to comment on the process of selecting nominees, but incoming White House Counsel Don McGahn is expected to play a key role. Such groups as the Federalist Society and the Heritage Foundation have been working with the Trump team to suggest possible candidates.

The judiciary also is a top priority for McConnell, who stands ready to help the Trump White House identify candidates and grease the sometimes-laborious Senate confirmation process.

The Trump administration and the Senate will be under pressure to quickly install judges in courts around the country where cases are severely backlogged because of long-vacant seats.

There are 38 so-called judicial emergencies, according to the nonpartisan Judicial Conference, including in Texas, where seven seats have sat empty for more than one year.

It’s not like the Democrats weren’t warned not only that Republicans would invoke the Nuclear Option as to nominations, but also as to other things.

The WaPo article points out that another Senate tradition could slow Trump’s leverage:

But Wheeler [of the Brookings Institute] warned that there are important limitations to Trump’s power. For one thing, many of the judges most likely to leave their appointments in the coming years were appointed by Republican presidents, meaning there will be fewer opportunities to shift the partisan makeup.

And perhaps more importantly, 28 of the 50 states will be represented by at least one Democratic senator, including large ones such as California, Florida and New York. Senate leaders have a tradition of considering nominees only if they are supported by both senators representing their state — and Democratic senators are expected to bargain hard with the Trump administration, just as Republican senators did with Obama’s.

Why honor that tradition? Democrats changed the rules with the Nuclear Option, so everything is open to change.

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Comments

And Democrats have no one to blame but themselves.

C’mon, Professor, you know the Dimocrat party better than that! They’ll blame ANYTHING but themselves.

In this case, I’m torn between George W. Bush, and Global Warming™.

Mark Finkelstein | December 26, 2016 at 9:25 am

Thanks, Harry: what goes around, comes around 😉

elections have consequences
Trump won Dems lost
Dems have to get in the back of the bus
Dems acted stupidly
Harry Reid will wish he didn’t screw with the rules
what goes around comes around
careful what you wish for you just might get it
it’s only funny till someone losses an eye

Such groups as the Federalist Society and the Heritage Foundation have been working with the Trump team to suggest possible candidates.

Best. Election. Ever.

The judiciary also is a top priority for McConnell, who stands ready to help the Trump White House identify candidates

Well, I did say “best” … not “perfect”.

It is unfortunate that everything relies upon McConnell. The same McConnell who after an election came out and said we will get back to the decorum of normal Senate rules, with no closing of the government. You know, the guy who lost all leverage before any negotiations started.

    VaGentleman in reply to davod. | December 26, 2016 at 1:07 pm

    But he did block Obama’s last court nominee, he did force Harry to go nuclear which gave us this opportunity, he did prevent any Obama gun control from passing, he is credited with engineering the repub senate majority, and he has not gone back to ‘normal’ senate rules…

    I would much rather have him there than someone who will be rolled on important legislation by a smart parliamentarian like Schumer.

      This is where the rubber hits the road. It’s important to remember that the Dems will only be able to make a huge stink over a limited number of nominees because their target audience (Low Information Voters) can only remember so many names at a time. If the Senate does its job, and the Dems throw a fit over three out of (for example) 100 appointees, the remaining 97 should cruise through the process INSTEAD of being held up behind the intended logjam. There’s going to be a long line of judges and Senior Executive Service(SES) employees needing to go through the process, and if the Dems had managed to grab the Senate, they could have gummed up the works for another eight years.

      Hopefully, the Republicans will do better.

      Look for McConnell to stab us in the back. It’s just who he is.

      We need to ditch this clown as well as that other rino clown Ryan.

    LindaK in reply to davod. | December 28, 2016 at 6:17 pm

    Yes, McConnell IS a big concern to the conservative side of the aisle. The TEA party worked hard to put them in power of both Houses in Congress… get more conservatives elected in so many other positions of power/ie: governorships/etc…. and then right out of the gate, McConnell starts working against them. Unbelievable… but still the Senate leader [RINO].

I hope the same clowns that vetted John Roberts are the ones “helping” choose nominees now.

Talk about seizing defeat from the jaws of victory.

Thank God #NeverTrump lost the election.

We have a couple of conservative justices who are getting at the age where it may be politically advisable for them to retire and let some 45 yr olds replace them while we have the chance to control the issue. If RBG cooperates, Trump could do 4 – sweet!

    Notorious RBG will only ‘cooperate’ by dying on the Bench.

    You’ll have to pry her body out of the chair with a crowbar because her last act of defiance will be to superglue her own butt down.

    Gremlin1974 in reply to VaGentleman. | December 26, 2016 at 4:10 pm

    Which conservative Justices are you referring to, because there are only 2 reliable conservatives left on SCOTUS, Thomas (68) and Alito (66) both of which have at least another at least 10 years left in them. It is far more likely that the next 2 justices to need replacement, other than the crypt keeper (RBG), are going to be Kenney (80) and Beyer (78). So I don’t really see what you are talking about.

Tradition! Progressives are reliably conservative when they want to be.

The dems should sock Harry Reid in the eye…oh wait…

If you really want to freak out a liberal on this topic, then point out that Ginsburg is 83 and has looked dead for the past 4 years. Also, Kennedy is 80 and and Beyer is knocking on 80’s door, so there is a possibility that he could get to appoint 3 SCOTUS members. Possibly more if/when he wins a second term.

NYT had an article that the repubs cheated obama out of a SC justice. I had to laugh at their sniveling rant.

    TeacherinTejas in reply to 4fun. | December 27, 2016 at 8:52 am

    Four words: Ted Kennedy; Robert Bork. As the Spanish would have it “best served cold.”

    Milhouse in reply to 4fun. | December 27, 2016 at 3:42 pm

    I don’t recall them objecting in July 2007, 18 months before Bush’s term was up, when Schumer announced that the senate would not confirm any new supreme court appointment “except under extraordinary circumstances”, which I take to have meant “if he nominates someone we like”.

Would be nice if Trump submits a list of 100 judicial nominatons to the Senate, and then for the Senate Judiciary committee to approve the nominations and then for McConnell to call for a vote all on the same day. leftie heads would go all splodey-dope

Bah!

Why didn’t the rebubs sink the Iran deal???

Treating it as a treaty would nave fallen short of the votes needed for confirmation.

RINO logic I guess…

    Milhouse in reply to GrumpyOne. | December 28, 2016 at 12:52 am

    They couldn’t sink it. What exactly do you mean by “treating it as a treaty”? You seem to imagine that the senate could have said “well, we’re going to proceed as if this were a treaty and you’d asked for our consent, so we will hold a vote on whether we consent, even though you never asked.” Well, OK, suppose they did that, and of course the vote would fail; what do you imagine would happen next? The result, of course, would be that 2/3 of the senate didn’t consent to it — which is exactly what did happen.

    Could you really be so stupid as to think there’s a difference between only 66 senators consenting and 0 senators consenting?! And that somehow having the consent of 0 senators is better than having 66?! No, the two situations are exactly alike: failure to vote is exactly the same as voting and failing to consent; either way it’s not a treaty of the United States, but the president is free to implement it so long as whatever it requires of him is within his powers. So why would he bother asking for consent that he knows he’s not going to get?

    The only way to stop it was for Congress to take away the president’s authority to lift the sanctions on Iran. Without that authority he wouldn’t be able to implement the agreement on his own, so he’d have to ask the senate’s consent to make it a treaty. But to do that over his veto required 2/3 of each house, which can’t be done without significant help from Democrats and that just wasn’t there.

      Considering that Constitutionally the president’s power is weakest when he goes against the will of Congress, you should be more circumspect in calling anyone you’re arguing with ‘stupid.’

“And Democrats have no one to blame but themselves.”

Bet they’ll b***h like a mother, though. I honestly couldn’t do it.

DieJustAsHappy | December 28, 2016 at 8:28 pm

It’s my understanding that after a certain number of days of the Senate in recess a president can make recess appointments, even to the Supreme Court. So, unless McConnell calls the Senate back into session, BHO could not only fill this vacancy, he could also fill the over 100 vacancies.

If this is not correct, I would appreciate a correction with an accompanying source.

+++++++++++++++++++++++
DieJustAsHappy | December 28, 2016 at 8:28 pm
It’s my understanding that after a certain number of days of the Senate in recess a president can make recess appointments, even to the Supreme Court. So, unless McConnell calls the Senate back into session, BHO could not only fill this vacancy, he could also fill the over 100 vacancies.

If this is not correct, I would appreciate a correction with an accompanying source.
+++++++++++++++++++++

The republicans have not been out of session for at least two years, since we took back control of each respective legislature (House in Jan 2011, Senate in … Jan 2015?)

IIRC, they remain in pro forma session (I think that’s the term), which prevents Obama from making appointments, since they are never technically in recess. This is what that whole National Labor Relations Board appointment fight to the Supreme Court was all about 18 months or so ago.

    DieJustAsHappy in reply to ksbsnowowl. | January 1, 2017 at 2:19 pm

    ksbsnowowl,

    I either misunderstood some material I read or the author of it is misinformed. Most likely, it was the former. So, thanks for setting this straight. I certainly would like to see BHO have as few opportunities as possible to inflict any damage beyond what he already has.

    Thanks, again.

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