Trump’s window for judicial nomination narrows after Democrats retake Senate

President Donald Trump’s first term in office was highlighted by the avalanche of judicial nominees he was able to get confirmed to the bench, but with Democrats set to take control of the Senate in January, the race is on to push through nominations before time runs out next year.During Trump’s first term, he got 234 federal judges confirmed to the bench, including three Supreme Court justices, a record only surpassed by former President Joe Biden last year when he was able to end his term with 235 federal judges and one Supreme Court justice confirmed to the bench. Both Trump during his first term and Biden during his only term had a Senate controlled by their respective parties for all four years. With Democrats projected to win at least a 54-seat majority in the Senate, Trump will now have significant issues replicating his success in confirming federal judges in his second term.Trump’s immediate difficulties come with trying to get outstanding nominees confirmed in the lame duck period before the GOP loses the Senate in eight weeks, followed by trying to navigate a firm Democratic majority in the chamber beyond January. If a Supreme Court vacancy opens up, Trump would face an enormous hurdle in filling it. Race to confirm nominees before 120th Congress begins Nearly halfway through his second term, Trump has been able to confirm 56 of his federal judicial nominees and still has 22 pending judicial nominees. To avoid the conservative nominees being voted down by a Democratic-majority Congress, the Senate GOP will have to rush through the outstanding names before January.Based on how the Senate Judiciary Committee, which remains under GOP control until Jan. 3, has been setting up the lame duck session, “it looks like they’re going to be pretty aggressive going in” and attempting to push through the nominees,” said Carl Tobias, a law professor at the University ​of Richmond.“I don’t think there’s that much legislation to be done, and so I guess they could make it, the ones who are there,” Tobias told the Washington Examiner, referring to the pending nominees. “I don’t know if Trump’s going to nominate even more. He might try to do that, but it’s pretty late.”Senate Judiciary Committee Chairman Chuck Grassley (R-IA) has already indicated that he hopes to push through nominees, scheduling judicial nomination hearings in back-to-back weeks beginning next week. The schedule represents an acceleration of the committee’s typical pace of holding one judicial nominee hearing every two weeks.John Malcolm, vice president of the Edwin Meese III Institute for the Rule of Law at the conservative Advancing American Freedom, believes that the GOP will be able to get most of the pending nominees confirmed before they lose power, but he emphasized that doing so will be a race against the clock.“I certainly think if they want to get them through, they’re going to have to get them through very quickly, particularly the appellate judges, because there is no guarantee that these people are going to be confirmed once we hit January and the Democrats control the gavel of the Judiciary Committee and the Senate,” Malcolm said.Trump will face uphill battle to confirm nominees Once the new Senate is sworn in, Trump will face difficulty passing any of his agenda through Congress with his party in the minority, and that difficulty will extend to judicial nominees. If he wants to have Congress accomplish any of his goals, he will likely have to compromise, including on judicial picks.“If Trump’s willing to compromise, especially in the blue states, he can nominate and have Democratic support if he wants to do that,” Tobias said, saying if Trump nominates more moderate nominees, he could potentially get some support from Democrats.“The ball’s sort of in Trump’s court, if he wants to do that, he could get a lot of people, and there’s precedent for that,” he added, noting that Trump would “have to have some buy-in from Democrats” to get any nominees confirmed in the upcoming Congress.Dealmaking with Democrats, something Trump has expressed some openness to doing in the aftermath of Tuesday’s disastrous results for the GOP, will be the president’s only option if he wants any nominees to move forward in the final two years of his term.“The president’s going to have to cut a lot of deals with the Democrats, ‘you let this one go through, and I’ll nominate that person who you like’. He’s going to have to do a lot more horse trading,” Malcolm told the Washington Examiner.Trump would face difficulty filling a Supreme Court vacancy When Trump returned to the White House last year, there was widespread discussion about how Trump could have an opportunity to put a fourth pick on the Supreme Court if a vacancy occurred. Democrats retaking the Senate by a healthy margin likely slams the door on Trump being able to pick a conservative justice in the mold of Justices Clarence Thomas or Samuel Alito, if either of those long-serving justices were to retire during his final two years in office.Speculation had mounted all year about Alito potentially retiring from the bench, despite Alito’s insistence that he would not be stepping back from the Supreme Court this term. He told Fox News last month that he was “bemused” by the speculation about his future and that it is “not too pleasant to look up and see the vultures circling.”If Alito were to retire in the coming days, or a different Supreme Court vacancy were to occur soon, Republicans could attempt to rush through a nominee during the lame duck period before Democrats take control of the Senate. Tobias pointed to Republicans’ ability to have Justice Amy Coney Barrett appointed and confirmed to the Supreme Court in 30 days between September and October 2020.“I think that’s a very live possibility as we speak, but whether it would come to pass. It has to be pretty rapid to move, but it’s doable. It’s not impossible at all,” Tobias said.Malcolm expressed doubt about that scenario happening, dismissing the idea that Alito would consider resigning abruptly after already ruling out retirement before the end of this term.“As much as Justice Alito might want to be replaced or succeeded by somebody who is a solid conservative – I think that he does – it would come across as being a very blatant political move if he were to resign during this lame duck session,” Malcolm said. “And I think that there’s no guarantee that they’d be able to get somebody through before the Democrats are sworn in in January.”Thomas, who was appointed by former President George H.W. Bush in 1991, has indicated that he intends to set the record for longest-serving Supreme Court justice and has no plans to retire in the near future. Thomas is the second-longest-serving justice in history and is expected to become the longest-serving in May 2028.WHY SPECULATION ABOUT SAMUEL ALITO’S FUTURE CONTINUES DESPITE HIS REJECTION OF RETIREMENTIf a Supreme Court vacancy occurs in Trump’s final two years in office, it could be left open by Democrats until after the 2028 election in hopes that a Democrat wins the presidency and the party holds the Senate, clearing the way to put a liberal justice on the bench. Republicans made that gamble in 2016, when the GOP-led Senate denied then-President Barack Obama his nominee to replace Justice Antonin Scalia, who died in February of that year. Trump would later select Justice Neil Gorsuch to succeed Scalia.“I certainly think that if there is a vacancy on the Supreme Court, he would have a very, very tough time getting somebody through, especially anybody who would look desirable to the conservative legal community,” Malcolm said.