Trump’s judicial confirmation machine will face resistance from the Democratic-controlled Senate

Washington- After enjoying successes in overhauling the federal judiciary during his first term and the first two years of his second administration, President Trump and Republicans’ campaign to move the courts to the right may be coming to an end with Democrats poised to take control of the Senate next year.

During his first term, Mr. Trump managed to nominate more than 230 judges to the federal bench, including three justices to the Supreme Court, rebuild the judiciary for decades. So far in his second term, the Senate has confirmed 57 of the president’s judicial picks. In total, Trump nominees represent about a third of active federal judges.

But the Democrats are now poised to control at least 54 Senate seatsand up to 56 depending on race results in Mississippi and Alaska, so Mr. Trump is unlikely to fill many other vacancies in U.S. district and appellate courts.

“No one, or almost no one, will be confirmed, so what he does in terms of appointing people, we’ll see,” Ed Whelan, a distinguished senior fellow at the Center for Ethics and Public Policy and a former law clerk to the late Justice Antonin Scalia, told CBS News.

There are currently 28 vacancies in the federal courts and 15 more seats that will be vacated in the coming weeks and months. So far, the president has officially sent the Senate 16 nominees for existing and future vacancies, although it is possible he will submit additional names for consideration before the current Congress completes its work. Mr. Trump announced three additional nominees for district courts in Texas and South Carolina on Tuesday on Truth Social.

The GOP-led Senate Judiciary Committee is moving quickly to advance these choices before control of the upper chamber changes hands. He voted in favor of four of the presidential nominees for the district court and held confirmation hearings for four other judicial nominees on Tuesday.

The panel is expected to hold more confirmation hearings next week, a departure from the committee’s practice of holding these proceedings every two weeks, according to a source familiar with the panel’s operations.

Republicans are violating “many long-standing norms in a desperate attempt to confirm more than 30 qualified loyalists to lifetime appointments before Democrats take the majority,” Sen. Dick Durbin, the Judiciary Committee’s top Democrat, said Tuesday.

Durbin raised concerns about two of Mr. Trump’s latest picks to serve as federal judges in Texas: James Sullivan, who lost his reelection bid to the Texas Supreme Court last week, and T. Elliot Gaiser, head of the Justice Department’s Office of Legal Counsel, whose only connection to Texas is a one-year clerkship for a judge on the U.S. Court of Appeals for the 5th Circuit.

The judicial panel received briefings from Sullivan after he lost his Texas Supreme Court justice campaign last week and from Gaiser on Nov. 8, before the president announced plans to nominate each man, according to the source. Both are expected to appear before senators for confirmation hearings next week.

“There are a lot of things we can still do, and I hope we use them. And one of them is not to fast-track applications that haven’t been carefully screened,” Durbin said. “I hope we don’t accept that as a norm within this committee.”

But Sen. Chuck Grassley, an Iowa Republican who chairs the Judiciary Committee, rejected Durbin’s assertion that he was deviating from his usual practices. He argued that there are no committee rules regarding how quickly it can hold confirmation hearings or when those proceedings take place, and said chairmen have discretion to set the panel’s schedule.

“Historically, this committee has shortened deadlines when circumstances warrant,” he said.

In anticipation of Democratic control of the upper chamber, Republicans should make judicial nominations a lame duck priority.

“The priority will be getting the justices across the finish line,” Senate Majority Leader John Thune said Monday.

But the federal bench seats that remain vacant at the end of the current Congress will likely remain vacant for at least the next two years.

“Over the last couple of years, we’ve seen Trump seek to pack into our courts — district courts, circuit courts — people loyal to him and not to the Constitution, and I think he’s going to try to continue to do that,” said Rachel Rossi, president of the Alliance for Justice, a progressive judicial advocacy group. “Right now, when Trump has clearly created this litmus test that there must be loyalty to him and not to the Constitution, it’s hard to see how Democrats can support candidates going forward.”

It is not unprecedented in the Senate for the party in power to block the nomination of a president from the opposing party. During the last two years of former President Barack Obama’s administration, when Republicans held a majority in the Senate, only 20 of his nominees to district and appellate courts were confirmed. Obama’s final judicial confirmation came six months before the end of his second term. Among the nominees who did not get a vote from the GOP-led Senate was Merrick Garland, who was nominated to replace Scalia on the Supreme Court after his death in February 2016.

“What we’ve seen is the federal courts are filled with extremists and loyalists, and now Democrats have the power to stop the overhaul of our courts in a very dangerous direction,” Rossi said. “I think there is increasing visibility about what judges mean and what these lifetime seats mean, and the hope is that Democrats will use their power and oppose any further overhaul of our justice system.”

Of the 43 current and future vacancies, Mr. Trump has yet to announce candidates for more than half of those seats. Many of them are in states that next year will be represented by either two Democratic senators or a Republican senator and a Democratic senator.

Democrats could work with the White House to find consensus on which nominees will serve on their states’ district courts, but it is unclear whether there is a desire on either side to do so.

“Republicans on the Senate Judiciary Committee and the Trump administration have gutted the committee’s oversight and confirmation authority,” Sen. Sheldon Whitehouse, a Rhode Island Democrat who is expected to lead the committee next year, said in a statement. “There must be accountability for years of Republican bad behavior, and a hard reset of the nomination process in the next Congress.”

The Democrats’ rout of Republicans in last week’s midterm elections also makes the resignation of a Supreme Court justice appointed by a Republican president in the final two years of Mr. Trump’s term unlikely, given that a successor would likely not be elected to the Senate.

The president has had a significant impact on the country’s highest court, appointing three of the nine judges. Among them was Justice Amy Coney Barrett, who filled Justice Ruth Bader Ginsburg’s seat after her death in September 2020, during Mr. Trump’s first term.

Justices Clarence Thomas, 78, and Samuel Alito, 76, are the two oldest members of the high court, but Alito told the Wall Street Journal in August, “I’m here for another term.” Alito too told CBS News Chief Legal Correspondent Jan Crawford last month, although he considered retiring earlier this year, he believes he can still make a contribution to the Supreme Court.

With neither justice expected to step down during the lame duck session, it could be several years before a Republican president and Senate are in place to confirm their potential successors to the Supreme Court, raising concerns among conservatives that a Democratic president and Senate could fill the seats of influential conservative justices.

“Trump managed to jeopardize his greatest achievement,” Whelan said.