A GOP-controlled Senate could grind Biden’s judicial nominations to a halt

Washington — President Biden’s first year in office set him apart from his five most recent predecessors with the swift pace of judicial confirmations by the evenly divided Senate, and his second year brought a historic bipartisan confirmation of Ketanji Brown Jackson to the Supreme Court, who will be the first Black woman to serve on the high court.

But the confirmation pipeline across the federal judiciary could grind to a halt if the GOP regains control of the Senate in the November midterm elections and its members deem nominees put forth by Mr. Biden to be too liberal, as Republican Sen. Lindsey Graham of South Carolina indicated this week.

“If we get back the Senate and we are in charge of this body and there [are] judicial openings, we will talk to our colleagues on the other side,” said Graham, who led the Senate Judiciary Committee during Justice Amy Coney Barrett’s confirmation in 2020. “But if we’re in charge, [Jackson] would not have been before this committee. You would’ve had somebody more moderate than this.”

The comments by Graham, coupled with the Judiciary Committee’s deadlocked vote Monday on approving Jackson’s nomination, underscored how the Supreme Court confirmation process has become another victim of the partisan polarization that has gripped the Senate in recent years.

Sen. Chris Coons, a Democrat from Delaware, told CBS News that Graham’s comments painted a dark picture for future Supreme Court confirmations in periods of divided government.

“That was a very clear shot across the bow that although President Biden may well be president for another two and a half years, we will genuinely struggle to confirm any nominee to the Supreme Court if Republicans take control of the Senate,” Coons said. “That means they are interested in changing the size of the court.”

Senate Minority Leader Mitch McConnell has not committed to holding a hearing for a Supreme Court nominee selected by Mr. Biden if another vacancy arises and Republicans control the Senate. 

“What I can tell you for sure, if the House and Senate are Republican next year, the president will finally be the moderate he campaigned as,” he told Axios on Thursday. McConnell did not allow a hearing for then-President Barack Obama’s Supreme Court nominee Merrick Garland in 2016, leaving a vacancy on the court for eight months that was eventually filled by former President Donald Trump once he assumed office.

Other key Republicans have been tight-lipped about their strategy. 

“Ask me on November the 9th,” Sen. Chuck Grassley, the top Republican on the Senate Judiciary Committee, told CBS News. “I’m not going to count the chickens before they hatch. So consequently, I want to make sure we are in the majority, and I’ll have to make those decisions. Right now, I don’t have to.”

While most votes to approve Supreme Court nominees decades ago were lopsided — Justice Ruth Bader Ginsburg was confirmed 96-3 and Justice Antonin Scalia was confirmed 98-0 — the margins by which justices are confirmed in recent years have narrowed considerably. Not a single Democrat supported Barrett’s confirmation, for example, while Justice Brett Kavanaugh was backed by a single Democrat, Sen. Joe Manchin of West Virginia. During Jackson’s confirmation hearings, Republicans aired grievances about the way in which Kavanaugh’s proceedings were handled by Democrats. 

Three GOP senators — Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — diverged from their party in voting to confirm Jackson to the Supreme Court, and Collins and Murkowski both lamented how the review process for high court picks has become corroded by partisan politics.

“The court is not supposed to be a politicized institution, and if the nomination process leading up to confirmation is overly political, I believe it undermines the public’s confidence in our courts,” Collins told reporters Tuesday. “Regrettably, that’s what we’ve seen with the last few nominees.”

Rakim Brooks, president of the Alliance for Justice, a progressive judicial advocacy organization, said he believes the landscape described by Coons, in which a Supreme Court nominee can only be confirmed if the Senate and White House are controlled by the same party, is “where we’re going in the future.”

“It’s a testament to where we are,” he told CBS News. “My hope would be we could get to a place where everyone recognizes there are good judges, and good judges who deserve to sit on the Supreme Court, but we’re far from that.”

Brooks predicted the partisanship that has infected Supreme Court confirmations will spill over to lower court nominations put forth by Mr. Biden, too, if Republicans take over the Senate.

Since he took office in January 2021, the Democratic-controlled Senate has confirmed 58 of Mr. Biden’s nominees to the U.S. trial courts and courts of appeals, and another 24 of his judicial picks are awaiting approval by the upper chamber to fill current or future vacancies on the federal bench — a fraction of the 71 seats that are open now and 34 vacancies that will arise in the coming weeks and months. 

The Judicial Conference, headed by Chief Justice John Roberts, has already declared 28 judicial emergencies, determined by how long vacancies have existed, in 14 federal courts. 

“We’re facing a justice crisis,” Brooks said. “Fundamentally, we’re talking about the administration of justice in the country and whether or not people get fair hearings for their grievances. This cheap partisanship is destructive of the justice that the American people expect and deserve from what’s supposed to be the most vaunted legal system in the world.”

Mr. Biden ended his first year in office with the most judges confirmed since President Ronald Reagan, and the Judiciary Committee expects to maintain its same pace of considering the president’s judicial nominees once the Senate returns from a two-week recess at the end of April, with hearings every other week and between five and six nominees at each proceeding.

If consideration of Mr. Biden’s judicial nominations were to come to a halt or slow if Republicans take control of the Senate, Brooks said the effects would “almost certainly” be acutely felt at the district court level.

“District courts are where justice starts in this country,” he said. “This partisanship and its treatment of the process for political gain, one way or the other, leads us to a place where we’re not doing what we need to be doing just to have a fair justice system.”

Judicial appointments, then, figure to become a midterm election issue this November. 

“The American public should be concerned,” Democratic Senatorial Campaign Committee Chairman Sen. Gary Peters told CBS News. “We need to have a functioning judicial system in this country with qualified judges on the bench.”

Republicans have been successful in past elections by galvanizing voters around the courts. National Republican Campaign Committee Chairman Sen. Rick Scott told CBS News that the courts are “very important” to GOP voters. 

“It’s how Trump got elected, because he put out his list of Supreme Court nominees in 2016,” he said.