Will Biden’s judicial nominees be confirmed?

It seems clear that Joe Biden will be the next president. The make-up of the Senate is less certain. It looks like there will be two run-off elections in Georgia and that the Dems will have to win both to get to 50 seats. Odds are they won’t accomplish this. (I will post about this later today.)

Assuming GOP control of the Senate, will Biden be able to have his judicial nominees confirmed? Last night, I speculated that he will be because Sens. Collins and Murkowski will vote to confirm nearly all of them. However, I added that Majority Leader McConnell could gum up the works.

In theory, McConnell could move to prevent the Senate Judiciary Committee from considering Biden’s judicial nominees. As I understand it, this is what he did with the Merrick Garland nomination in 2016.

Alternatively, the Committee could consider Biden’s nominees but vote not to send them to the Senate floor for a vote. The Majority Leader has the power to send nominees to the floor anyway, but in this scenario McConnell wouldn’t do so.

In both scenarios, it wouldn’t matter that Collins and Murkowski support the nominee. Neither would have the opportunity to vote on him or her.

I doubt, though, that a GOP Senate would adopt either approach as a general matter.

First, Lindsey Graham, chairman of the Judiciary Committee, has a long record of supporting the judicial nominees (including to the Supreme Court) of Democratic presidents. Graham takes pride in this position, and touted it once again during the hearings on Amy Coney Barrett.

I didn’t dub Graham “the Arlen Specter of the South” for nothing.

Second, it would probably be bad politics for the GOP to engage in the wholesale obstruction of judicial nominees. The public expects something like regular order from the Senate in considering nominees. We saw this during the Barrett hearings.

Republican obstruction of the judiciary on a large scale would risk a backlash in 2022. If the Senate turns Democratic in 2023, Biden will be able to confirm any judicial nominee he picks. Mitch McConnell is too savvy not to be sensitive to the political risks of wholesale obstructionism, or so it seems to me.

This doesn’t mean that the Senate will rubber stamp Biden’s nominees. For one thing, McConnell and the Committee need not be in a hurry to confirm them. The pace of the confirmation process might be snail like.

For another, the Committee can vote down the more leftist among Biden’s choices for appeals court judgeships. In this way, it can pressure Biden not to select hard-left nominees. We might see the Senate leadership “advise” as a condition of its “consent.”

There probably won’t be a Supreme Court vacancy in the next two years. If there is, I assume McConnell and Graham will chart their course with an eye on the political lay of the land in 2022 and on institutional considerations.

Given his track record, McConnell is likely to choose wisely. Among the things he might consider are (1) whether the nominee is replacing a liberal or a conservative Justice and (2) the long-term institutional consequences of obstructing well qualified non-radical Democratic nominees to the Supreme Court in other than presidential election years. One consequence of such a power play might be an increased determination by Democrats to pack the Supreme Court at the first opportunity, coupled with a diminution of public opposition to court packing.

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