Oh, the Irony: Trump Tells Dems to Quit Confirming Judges Before Inauguration

Come January, Republicans will hold the White House, House, and Senate. By the end of Donald Trump’s second term, half the federal judiciary—and the majority of the Supreme Court—could be his picks alone. So, as they should, Senate Democrats have spent this week trying to confirm as many of Biden’s dozens of remaining judicial nominees as possible. Senate Republicans like Vice President-elect JD Vance and Sen. Marco Rubio (R-Florida), Trump’s pick for Secretary of State, have helped make this possible with their absences. 

Trump is predictably peeved at this turn of events, because if Biden’s picks aren’t confirmed, Trump could obviously fill the vacancies with his picks. On Tuesday night, he chimed in to yell at both Democrats and Republicans on Truth Social: “The Democrats are trying to stack the Courts with Radical Left Judges on their way out the door. Republican Senators need to Show Up and Hold the Line—No more Judges confirmed before Inauguration Day!” 

That last demand is nothing short of ironic, given that in his first term, Trump arguably stole two whole Supreme Court seats. First, Senate Republicans refused to vote on then-President Obama’s nominee to replace the late Justice Antonin Scalia in 2016, claiming this was wrong because it was an election year. Within months, Trump filled the vacancy with right-wing wunderkind Neil Gorsuch. And, when Justice Ruth Bader Ginsburg died in October 2020—also an election year, and just days before Election Day, for that matter—Trump rammed through Amy Coney Barrett. One could even argue Trump stole Brett Kavanaugh’s seat: Kavanaugh, too, was rushed through, as Trump and the GOP insisted on foregoing a thorough investigation into sexual assault allegations against Kavanaugh, and also ignored thousands of tips about him to the FBI. 

The idea that Senate Democrats shouldn’t be confirming federal judges right now is insane for a lot of reasons, including that… there’s no rule whatsoever demanding that they cede the remaining judiciary vacancies to the next president. Trump and Republicans certainly didn’t do that in 2020, as White House spokesperson Andrew Bates pointed out in a statement on Tuesday. “Delaying the confirmation of highly qualified, experienced judges takes a real-life toll on constituents and leads to backlogs of criminal cases—meaning Senator [John] Thune was correct in 2020 when he said senators have every urgent reason to continue working together in good faith to staff the federal bench,” Bates said, pointing to how the Republican-controlled Senate spent the final days of Trump’s presidency confirming as many of his picks as possible. 

At the end of Trump’s first term, he successfully appointed 234 federal judges; Biden has so far confirmed 216, and the Associated Press reports that “dozens” are still awaiting confirmation. Senate Judiciary Chair Dick Durbin of Illinois told reporters on Tuesday that, if needed, Senate Democrats are prepared to hold votes on judicial appointees through the upcoming Thanksgiving and Christmas breaks: “I hope that the Republicans will at least be as cooperative with us as we were with them,” Durbin said. Thus far, Senate Republicans have attempted to stall confirmation votes by manipulating confusing procedural rules, including forcing Democrats to hold time-consuming votes on varying procedural motions. But alas, the numbers have been stacked against Republicans, seeing as Democrats already hold a narrow majority and several Republicans (ahem, Rubio and Vance) are currently absent.

Tensions over these absences came to a head at a Tuesday lunch when North Carolina’s Sen. Thom Tillis tore into the caucus for failing to show up and hold the line: “If we don’t show up, we lose,” he told his colleagues, according to The Hill, which reports that Tillis “was visibly frustrated.” He continued, “I don’t care what the reasons were. We have fewer than 15 scheduled legislative days. You have to show up. Period. End of story. There’s nothing more important.” 

Surely part of Senate Republicans’ frustrations is that, if they actually tried, they could successfully block some of these nominations: Sen. Joe Manchin of West Virginia voted against one Biden judicial nominee this week, Sen. John Fetterman (D-PA) was absent on Tuesday, and Vice President Kamala Harris, who would serve as a tie-breaking vote as needed, just left D.C. for Hawaii on Tuesday, per The Hill. So what’s stopped Senate Republicans from blocking nominees is their own party’s absences. 

Earlier this month, Sen. Elizabeth Warren (D-Mass.) wrote in an op-ed that the most important action Democrats need to take before Inauguration Day is confirming Biden’s nominees. She called on Majority Leader Chuck Schumer and Senate Democrats to “use every minute of the end-of-the year legislative session to confirm federal judges and key regulators—none of whom can be removed by the next president.”

We can expect all of Trump’s nominees to be anti-abortion extremists and 25-year-old fascists to serve life-long appointments, so, Warren is hardly being dramatic—every minute needs to go toward mitigating that harm.