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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