The 2022 vote: Control of the Senate and judges
Yes, “a two-vote margin” in the Senate will probably let us break the filibuster. Legislate abortion rights. Climate change. Voting rights. Maybe, enlarge the court. Good stuff, and it’s important.
But here’s the real reason to work hard for a Senate majority: judges.
There’s a discouragement among Democrats about judges, a feeling that not only did the Republicans pull a fast one, but the Democrats also didn’t put up much of a fight. That really isn’t true. They fought hard to get judges confirmed during Clinton’s and Obama’s presidency, and they fought hard against most Republican Supreme Court nominees. In my adult lifetime, the Dems rejected three Republican nominees (Haynsworth, Carswell, Bork) and made it clear Harriet Meier was going down if Bush didn’t withdraw her name. They went to the mattresses about Clarence Thomas and, except John Roberts, have fought every GOP nominee since the egregious Alito. Their problem has been that they’ve only controlled the Senate 12 of the last 28 years.
And Biden has had the most successful first 18 months for judicial appointments of any president since JFK. As of the time the Congress adjourned to go home and campaign, the number of sitting federal judges appointed by Democrats is 406, while 383 were appointed by Republicans. In his first year and eight months, Biden has appointed 80 (that means saw them through to Senate confirmation) federal judges.
In the all-important circuit courts, while there are more Republican-appointed judges (95-84), the Dems control as many circuits as the GOP. But 3 are by a single vote; one is by two votes; and two Republican-controlled circuits are controlled by a single vote. The Republicans have a solid lead in five circuits (one of them is 1-10 and another is 4-12) and are not within Biden’s reach. But, given two more full years that he’s able to get judges confirmed could solidify Democratic control of those four one- and two-vote circuits and add the two-vote Republican circuits to the Blue side of the ledger.
Indeed, there are seven current vacancies in those six circuits. Filling all those seats would solidify the lead in three of those Dem-controlled circuits, turn one of the GOP-controlled circuits from red to blue (two vacancies), and tie a second one.
And Mitch McConnell has promised that if he’s in charge of the Senate, he’s prepared to suspend judicial confirmations.
Yes, the Supreme Court is a toxic waste dump, as I’ve written about in several essays. But the lower courts matter, especially the circuits. Most cases that come to the circuit courts end there. Bad as they are, the Supreme Court can only hear so many cases. The 11 circuit courts plus the federal and DC circuits are the final word on the overwhelming majority of cases they hear.
More important than the number already confirmed, there are 85 vacancies – nearly 10% of the lifetime appointments. Twenty-five are awaiting a vote in the Senate and only a handful of them will be confirmed during the lame duck session. The rest of that 25, plus the other 60 vacancies, plus perhaps another 50-75 vacancies that haven’t happened yet, will go through the confirmation process – or won’t – in Biden’s last two years. Mitch McConnell has already pledged to sit on judicial nominations if he’s put in charge of the Senate again, so it’s a very clear choice.
Nothing a president does is more important than judicial nominees and Biden is one of the best ever. If the Dems control the Senate for two more years, they will have seized strong control of the lower courts, which is a big deal.
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