WASHINGTON — In the face of some stunning electoral setbacks this week, Senate Majority Leader Mitch McConnell and President Trump are trying to get their party to refocus the mission at hand: confirming judges.
Now, with the government lurching ever closer to another shutdown in the coming weeks, and with Democrats opposing the GOP’s attempt to move on to a defense spending bill, McConnell is planning to confirm at least 30 conservative judicial nominees before year’s end, which will bring joy to Trump’s base and build a legacy that will outlast both of their political careers.
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McConnell and Trump have already overseen the confirmation of more than 150 judges — a whopping 40 more than former President Barack Obama had confirmed at a similar point in his tenure.
McConnell got a standing ovation Wednesday at a White House celebration Trump held to mark the achievement, and they’re celebrating on the campaign trail, too. “So President Obama left Mitch and me and Rand [Paul] and all of us, he left 142 openings for judges,” Trump said to cheers at a Monday rally in McConnell’s home state, Kentucky. “You are not supposed to allow any. You don’t do that.”
Rest assured McConnell and Trump have no plans to do that. So while Democrats are obsessing over impeachment, and government funding remains at an impasse over funding for Trump’s border wall, McConnell is going to stick to his knitting and steamroll Democrats with another wave of judicial confirmations.
“The Senate will continue its work in the personnel business and confirm more of the president’s outstanding nominees to the federal judiciary,” McConnell said on the Senate floor this week. “Since our Democratic colleagues chose last week to filibuster defense funding and block the Senate from even considering legislation to fund our armed forces, we’ll turn our focus to confirmations while we wait for progress from them on appropriations.”
While the nation’s judiciary has historically been a snoozer for the Democratic base, the very mention of it is red meat to conservatives, and McConnell and Trump know it as Republicans head into a difficult election year. That’s why they’re redoubling their efforts to fill the judiciary with as many young, conservative ideologues as possible.
McConnell himself is on the ballot next November, facing a formidable Democratic opponent in former fighter pilot Amy McGrath, who has raised more than $10 million since announcing her bid in July. McConnell’s campaign has tried to combat her growing war chest by hawking judiciary swag, like a “Back-to-Back Supreme Court Champs” T-shirt.
“Nobody’s done more to change the court system in the history of our country than Donald Trump,” McConnell said at the Kentucky rally. “And Mr. President, we’re going to keep on doing it. My motto is ‘Leave no vacancy behind.’”
But even as Trump and McConnell are openly bragging about their efforts to remake the nation’s judiciary in their own image, Democrats in Congress once again look to be caught flat-footed, which is angering their progressive base and sowing some dissension in the party’s ranks.
While the goal for the GOP is clear, on the Democratic side of the aisle things remain murky. That’s partly due to the nature of being the minority party in today’s hyperpartisan Senate.
“We’re requiring, you know, all the time be used. We’re requiring there to be several votes on each judge. That’s why you have to win elections,” Sen. Chris Murphy (D-Conn.) told VICE News at the Capitol. “Here’s what we can do to slow down judges: win in 2020. So all the folks who are grousing about the pace of judges, they should put all their effort into making sure that we win the majority in 2020.”
That’s not good enough for many of the party’s activists, though. They argue Senate Democrats remain timid and are playing too nice instead of working overtime to gum up the works of the upper chamber to try and stop this judicial makeover.
“It’s terrifying, so Democrats should put all options on the table to figure out how to stop this parade of judicial nominees,” Justin Krebs, a spokesperson for MoveOn.org, told VICE News in a phone call. “Mitch McConnell has clearly never ruled any option out, and if we are being too tied to the old ways, too reliant on the old playbook, we’re going to lose again and again.”
The criticisms from progressive groups like MoveOn and Demand Justice aren’t totally falling on deaf ears in the Senate, especially those who were serving as Obama got rolled again and again by McConnell.
“We’ve learned a lot. I look back and I think we were pretty – um, um – we were much more gentle than we should have been,” Sen. Richard Blumenthal (D-Conn.) told VICE News while riding up an elevator at the Capitol.
After former Majority Leader Harry Reid deployed the so-called nuclear option, which effectively ended the filibuster for all judicial nominees except Supreme Court picks, McConnell followed suit. He blew up the filibuster for SCOTUS picks and then even dropped the time limit needed to debate other lower-court nominees in order to ram through nominees handpicked by Trump and the conservative Federalist Society. Many of those nominees have now been confirmed for life. That has Democrats mulling how to respond if they capture the White House and the Senate majority next year.
“The judges can’t be unseated, but there will be more judges and we can add judgeships,” Blumenthal said.
But progressive activists are begging for action now, and Senate Democrats fear there’s not many tools at their disposal.
What can Democrats do to stop it?
“Nothing,” Sen. Brian Schatz (D-Hawaii) told VICE News on his way to a Senate vote. “They have the majority. If we want to start legislating, we need the majority. And if we want to stop these unqualified – and very youthful – ideologues from being given lifetime appointments to the federal bench, we just have to take the Senate.”
Schatz argues the calls from some in the party’s base to gum up the Senate or to engage in things like physical protests just aren’t the right long-term strategy.
“I for one am not going to fall for the, sort of, demands for performative losing,” Schatz said. “I’m all about making sure we actually change the dynamics here, and losing spectacularly in a way that earns you a positive tweet from an advocate doesn’t actually stop Mitch McConnell’s train.”
While the party’s base is waking up to what McConnell and Trump are up to, Schatz says “the plain fact is that health care and corruption are bigger motivators than the judiciary” for most Democratic voters.
“The reason that the Republicans have been so successful on judges is they’ve persuaded tens of millions of voters that judges matter. And they’ve done the grassroots organizing and the fundraising and the messaging necessary to build a movement behind it,” Schatz said. “Simply demanding that we conjure 51 votes when we’re in possession of only 47 is a fool’s errand.”
Cover: President Donald Trump and Mitch McConnell appear on stage at a campaign rally in, Lexington, Kentucky, Monday, Nov. 4, 2019. (AP Photo/Susan Walsh)
