Senate Democrats accepted an offer Thursday from Senate Republicans to confirm 15 lifetime federal judges in exchange for the ability to go into recess through the midterms, allowing endangered Democrats to campaign.
The calculation by Senate Minority Leader Chuck Schumer and his caucus was simple: That Senate Majority Leader Mitch McConnell (R-Ky.) would be able to confirm roughly 15 judges if he kept the Senate in session for the next few weeks anyway. So Democrats OK’d an offer to confirm three Circuit Court judges and 12 Circuit Court judges as the price to pay to go home for election season.
Under Senate rules, even if Democrats fought the nominees tooth and nail and forced the Senate to burn 30 hours of debate between each one, McConnell would have gotten them all confirmed by Nov. 1. Democrats could have conceivably left a skeleton crew of senators in Washington to force the GOP to take roll call votes on the judges over the next few weeks, although that tactic is not typically employed by the minority.
Some liberal activists are urging Democrats to show more fight after Brett Kavanaugh’s confirmation to the Supreme Court; Markos Moulitsas of Daily Kos even said that Democrats “need a new Senate leader” after the agreement was struck. But senators had to weigh that dynamic along with the approaching midterms and the brutal Senate map. And with a half-dozen Democrats facing serious challenges in Senate races, it made more sense to make what Democrats said was a reasonable deal with McConnell so that they could make a serious run at saving endangered senators.
Sen. Jon Tester (D-Mont.) deadpanned that he was “tickled” pink that he could go home and campaign in Montana, where his race against Matt Rosendale is tightening.
“If we stayed here for two or three weeks, we’d probably have done the same thing,” Tester said. “I think it’s good.”
Massachusetts Sen. Elizabeth Warren told the caucus that she opposed the deal, the lone Democrat to voice displeasure, according to a person briefed on the meeting.
McConnell and President Donald Trump will now have confirmed 84 judges over the past two years, including two Supreme Court nominees, after the deal. Democrats also allowed a package of judges to be confirmed in August as a condition of going home.
Though Senate Democratic leaders advised the agreement to their members on Thursday afternoon, several senators said on the way to the votes they were unaware what exactly their leadership had just agreed to. Any Democrat could have objected to the deal as McConnell read it on the Senate floor, but none did.
“I am surprised,” said Senate Majority Whip John Cornyn (R-Texas). “The difficulty [Democrats] have is an angry base after the Kavanaugh confirmation, and trying to explain to them this is a necessary thing to do. That’s why Sen. Schumer gets paid the big bucks.”
One nominee Democrats loathed, Thomas Farr for a federal district court judgeship in North Carolina, was left out of the package.
Senate Democrats have privately argued it’s in the party’s best interest to allow quick confirmation of judges in order to let endangered red state senators go home and campaign. But Schumer and his caucus immediately endured some liberal criticism for accepting the deal.
Vanita Gupta, who leads the Leadership Conference on Civil and Human Rights, called it “appalling” for the Senate to confirm those nominees without debate. And Demand Justice, a group started to fight Trump’s court picks that spent considerable amounts during the Kavanaugh fight, called the deal “totally unnecessary.”
“It is a bitter pill to swallow so soon after the Kavanaugh fight that so many progressive activists poured their hearts and souls into. This period will be long remembered not just for the historic number of judges Trump has been able to confirm, but also because of how passive Democrats were in response,” said Demand Justice chief counsel Chris Kang. “The progressive grass-roots have awoken to the crisis of Trump’s takeover of the courts, and are not going to tolerate this kind of weakness for much longer.”
But Sen. Heidi Heitkamp (D-N.D.), who could conceivably mount a comeback in her state with retail politics, missed Thursday’s Senate session anyway, and there likely would have been more defections next week if the Senate hadn’t taken the deal.
And some Republicans said they were willing to keep the Senate in session to do more. Sen. David Perdue (R-Ga.) said he was happy with the progress McConnell has made, but he said he’d prefer the Senate stay in session this October and confirm even more of Trump’s nominees, particularly those to the executive branch.
“I give Mitch McConnell all the credit in the world for his perseverance,” Perdue said. But he added that the backlog of executive branch nominees mean “the administration hasn’t been able to form it’s government yet … I’m ready to stay here next week, the next couple of weeks, whatever it takes.”