WASHINGTON—The U.S. Senate will remain in Democratic control for six more weeks, during which time Senate Majority Leader Chuck Schumer (D-N.Y.) has vowed to continue confirming President Joe Biden’s judicial nominees for lifetime appointments.
He will be able to do so with a simple majority vote of the U.S. Senate.
During President-elect Donald Trump’s first presidential term, the Senate’s then-Majority Leader Mitch McConnell (R-Ky.) made the confirmation of Trump’s judicial nominees the body’s “highest priority” and removed the cloture requirement for Supreme Court nominees that, effectively, entails a 60-vote threshold for confirmation.
Before that, in 2013, during the Obama administration, then-Senate Majority Leader Harry Reid (D-Nev.) led a successful effort to remove the cloture requirement for executive posts and judicial appointees below the Supreme Court level.
During Trump’s first term, he and McConnell enabled 251 federal judges to take the bench, including three Supreme Court justices.
After Biden and Schumer took office in 2021, they adopted the same majority-vote playbook for judicial nominees, resulting in 234 being confirmed by the Senate as of this writing. These confirmations have continued after Republicans’ victory in 2024’s presidential and Senate elections.
“The Senate will keep working to confirm more of President Biden’s judicial nominees. It’s already been a very productive week here in the Senate,” Schumer said on Nov. 20.
“I ask my colleagues to be ready to stay late, and to keep the votes moving quickly. We did that the other night and we got a lot of votes done relatively fast.”
This prompted Trump to ask Republican senators not to skip the confirmation sessions.
Delay Votes and Show Up
Republican senators told The Epoch Times that while they’re disappointed, they cannot stop Schumer from scheduling votes on judicial nominees. They can only deny “unanimous consent” to proceed with nominations—which merely slows down the process—but they don’t have the votes to defeat many nominations.“It takes unanimous consent, on our part, to speed up the process and to make it easy for him,” Sen. Josh Hawley (R-Mo.) said. “They’ve had a lot of success at [appointments]. They’ve appointed [about] 220 and it’s a lot. They’ve been extremely efficient.”
Some senators, as well as Trump, say that if all Republican members were present for votes, they could defeat nominations. Currently, Republicans have 49 Senate seats. Democrats have 47, plus Sen. Angus King (I-Maine) and Bernie Sanders (I-Vt.), who caucus with the Democratic Party.
This enables them to confirm nominees, even with full attendance, either with the support of former Democratic Sens. Joe Manchin (I-W.Va.) and Krysten Sinema (I-Ariz.) or the tie-breaking vote of Vice President Kamala Harris.
“I’m disappointed that all the people on my side of the aisle wouldn’t show up to vote,” Sen. John Kennedy (R-La.) told The Epoch Times. “I’m very disappointed. Some of these nominations were dead as Woodrow Wilson if we had all of our people show up to vote.”
Kennedy spoke after the Senate confirmed Mustafa Kasubhai as a judge for the U.S. District of Oregon, a nomination that he'd strongly opposed.
Tensions over attendance came to a head on Nov. 18, when the Senate stayed in session until midnight to confirm certain judicial nominations, such as that of Embry J. Kidd to be a judge of the 11th U.S. Circuit Court of Appeals. Not all Republican senators were present, which prompted criticism from prominent Republicans.
“Now, the leftist judge will have a lifetime appointment and the people of FL [Florida], AL [Alabama] and GA [Georgia] will suffer the consequences.”
Among those absent from the vote was Vice President-elect JD Vance, who will remain the junior U.S. senator from Ohio until he resigns to assume the vice presidency on Jan. 20, 2025.
Vance, who was criticized for his absence by some conservative commentators, was present at the Capitol on Nov. 19 to vote against nominees, though he has otherwise defended his absences—citing his role in the presidential transition.
“When this 11th Circuit vote happened, I was meeting with President Trump to interview multiple positions for our government.”
It’s unclear whether Vance will show up for every judicial nomination vote henceforth.
No Consensus in Opposition
Despite Republicans’ dissatisfaction, some GOP senators remain open to considering nominees, even during this lame-duck period of the 118th Congress.“I’m still looking at the nominees individually,” Sen. Susan Collins (R-Maine) told The Epoch Times. However, she cautioned, “It seems to me that there comes a point where you do cut it off,” though she didn’t specify when.
“No comment,” Sen. Tom Cotton (R-Ark.) said when asked about Democratic plans for judicial nominations.
His Arkansas colleague, Sen. John Boozman (R-Ark.), meanwhile, told The Epoch Times, “We’re looking forward to the hearings.”
Democrats have rebuffed any questions about the legitimacy of Biden’s nominees in the lame-duck session and vowed to continue confirmations.
“[Biden] was elected for four full years. To my knowledge, we’re still in four full years,” Sen. Cory Booker (D-N.J.) said. “It’s still part of his term right now so he should be confirming judges.”
Booker’s colleague Sen. George Helmy (D-N.J.), who was appointed after Sen. Robert Menendez (D-N.J.) resigned, wrote: “The people in the Senate have been elected to serve out a full term. Why would they stop working?”
In 2020, when Supreme Court Justice Ruth Bader Ginsburg died on Sept. 18, Trump and Republicans acted quickly to nominate, confirm, and appoint Amy Coney Barrett in her place, which was completed just 39 days before the 2020 presidential election.
Then-presidential candidate Biden spoke out against the process to confirm Barrett, saying, “The voters should pick the president, and the president should pick the justice for the Senate to consider.”
He cited McConnell’s decision in 2016 not to hold a vote on President Barack Obama’s nomination of then-Judge Merrick Garland to the seat vacated by Justice Antonin Scalia after his death that year.
When presented with this comment by The Epoch Times, Senate Democrats made a distinction between Supreme Court nominees and those of lower courts.
“Confirming these? That’s much different,” Sen. John Fetterman (D-Pa.) said. “A Supreme Court nomination’s a very different kettle of fish than making judicial appointments during that lame-duck period. To my knowledge, that has always happened with every transition.”
The practice of appointing judges after a presidential election has a long history in U.S. politics, dating back to 1800. That year, after Vice President Thomas Jefferson of the Democratic-Republican Party defeated then-President John Adams of the Federalist Party, the latter worked with the Federalist-run Senate to confirm many nominees.
They became known as “midnight judges,” to the Democratic-Republicans’ outrage. One such appointment became the issue in the case of Marbury v. Madison, which established the principle of judicial review and is widely regarded as the most important Supreme Court ruling in history.
