WASHINGTON — The Senate Judiciary Committee met Wednesday morning to perform the routine task of considering three nominees to be federal judges. But the short and uneventful hearing belied an undercurrent of urgency because confirming President Biden’s judicial picks could be crucially important for Democrats — and perhaps American democracy itself — if Donald Trump wins the 2024 presidential election.
Federal courts played a pivotal role in stopping, stalling, or forcing rollbacks of several of Trump’s most controversial first-term policies, including a ban on entry to the US by people from seven predominantly Muslim nations. Federal judges — including some Trump appointees — also halted Trump’s legal efforts to overturn his 2020 election loss to Joe Biden.
“As much as Trump needed to be checked in the first term, everything that he’s indicated about a second term means that judicial checks will be just essential,” said Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, who recently wrote an opinion article urging Democrats to move faster on judicial confirmations. “There will be no check but for the courts.”
The hearings on judicial nominees take place every couple of weeks and, unlike the political circus of a Supreme Court confirmation, typically are lightly attended and devoid of drama. On Wednesday, the picks for two district court seats in Oklahoma and one in the Northern Mariana Islands faced questions from less than half of the committee’s members and the session concluded in a tidy 65 minutes.
Except in rare circumstances, such as with a controversial choice for an appellate court seat in Boston this year, the nominees go on to be confirmed, mostly along party lines, as the White House scrambles to match the pace of the Trump administration in filling judicial vacancies. Continuing to do so, some Democrats said, is the best preventative measure they can take in case Trump wins next year and follows through on threats to punish his enemies and reportedly push constitutionally questionable policies in what he has called a potential “revenge tour.”
“The Democrats need to fill every federal judicial slot possible in the time between now and the election,” said Massachusetts Senator Elizabeth Warren, who called the courts “a key bulwark against tyranny.” “I have every confidence that President Biden will be reelected, but I’m not stupid. I don’t believe in taking chances.”
The White House and Senate Democrats this month celebrated Biden’s 150th judicial confirmation — Massachusetts Deputy State Solicitor Julia Kobick for a seat on the state’s US district court — and highlighted the diversity of the picks to these lifetime positions: 100 are women and 98 are people of color, including Ketanji Brown Jackson, the first Black woman to serve on the US Supreme Court.
“We have more work to do, and I am committed to filling every judicial vacancy with appointees whose credentials, ability, and impartiality are beyond question,” Biden said of the milestone.
But the number, now up to 154, is still behind Trump’s pace at the same point in his first term. Biden is unlikely to match Trump’s 234 total confirmations, in large part because Trump inherited far more vacancies.
“I’m very pessimistic that Biden can outdo Trump,” said Russell Wheeler, a nonresident senior fellow at the Brookings Institution think tank who closely tracks judicial confirmations. That’s particularly the case with judges on the powerful appeals courts. The Senate has confirmed 37 of Biden’s appellate nominees compared to 46 for Trump at the same point in his presidency, Wheeler said. Trump finished his term with 54 confirmations and there are only six current appeals court vacancies.
Senator Richard Blumenthal, a Connecticut Democrat, said he and his colleagues on the Judiciary Committee understand the stakes and are trying to confirm as many judges as possible.
“The courts are going to be the ultimate firewall against some of the absurdly illegal ideas that Donald Trump is floating,” he said. “Even if he is unserious about half of what he’s suggesting, it’s still deeply dangerous to our democracy.”
Trump has been talking revenge as he battles 91 criminal indictments in federal and state courts involving his attempt to overturn the Georgia election results, his handling of classified documents after he left the White House, and his business operations. He has claimed the charges are politically motivated and has strongly suggested he’ll turn the powers of the Justice Department against his political opponents now that “they’ve released the genie out of the box.”
“If I happen to be president, and I see somebody who’s doing well and beating me very badly, I say, ‘go down and indict them.’…They’d be out of the election,” Trump said in a Univision interview this month. He’s vowed to appoint a special prosecutor to “go after” Biden and his family and suggested Mark Milley, the former chairman of the Joint Chiefs of Staff, deserves the death penalty for assuring Chinese officials the US government was fundamentally stable despite the chaotic aftermath of the 2020 election.
At the same time, the Washington Post and New York Times have reported that Trump and his allies are developing plans for a second term that include potentially using the military against domestic demonstrations, carrying out mass deportations of undocumented immigrants, and ordering the Justice Department to investigate Milley and others who worked for him but have become outspoken critics.
Trump’s campaign called the reports “purely speculative and theoretical.”
“President Trump and his campaign are singularly focused on beating Joe Biden and achieving victory next November,’ said a statement sent to reporters from advisers Susie Wiles and Chris LaCivita.
Senator Mitt Romney, a Utah Republican and a Trump critic, was skeptical about Trump’s threats.
“Some of the things are pretty dramatic,” Romney said. “The courts would have to play the key role and make sure that was not a problem. I doubt he’d actually do it, but we’ll see.”
Lawrence Douglas, a professor of law, jurisprudence, and social thought at Amherst College, said there’s no reason not to believe Trump.
“It’s not like this guy is Machiavellian in his tactics and strategies. He’s usually pretty transparent,” said Douglas, who encountered skeptics about his prescient spring 2020 book, “Will He Go? Trump and the Looming Election Meltdown in 2020.″ “People at the time said, ‘Why are you certain about this?’ I said, ‘I’m just taking him at his word’ and I think we have every reason to do that.”
Judges regularly smacked down Trump in his first term. Overall, he won in just 17 percent of legal challenges to agency regulations compared to a 70 percent success rate for previous administrations, according to an analysis by the Institute for Policy Integrity at New York University School of Law.
The courts have become an increasingly crucial battleground in a closely divided nation, with both parties running to judges to try to stop policies when their opponents control the White House. The supercharged partisanship around judicial confirmations has not only turned Supreme Court nominations into pitched battles but has spilled into lower court appointments as well.
Led by Mitch McConnell, Republicans laid the groundwork for transforming the courts by using their Senate majority in the last two years of Barack Obama’s presidency to thwart many of his judicial nominees, including denying even a hearing for his pick for an open Supreme Court seat. That left an unusually large number of judgeships for Trump to fill when he took office: 12.8 percent of district court seats and 9.5 percent of appellate positions were vacant at the start of 2017, both the highest levels in years, according to the nonpartisan Congressional Research Service. (In contrast, the vacancy rates were 6.4 percent for district courts and 1.1 percent for appellate courts when Biden took office.)
After Trump won the White House, Senate Republicans changed two procedures to make it easier for him to fill the jobs. They removed the filibuster for Supreme Court nominees and ended the longtime prerogative of a single senator to block an appeals court nominee in his or her state. That allowed Trump to appoint more judges in four years than any president since Jimmy Carter, Wheeler said.
Trump was particularly effective in filling appellate seats — one step below the Supreme Court — appointing nearly a third of the 179 judges serving nationwide and flipping the ideological makeup of three of the 13 circuit courts of appeals to a majority of Republican-appointed active judges. Biden’s confirmations so far have shifted one of those appellate courts, the New York-based 2nd Circuit, back to a majority of Democratic-appointed judges.
Trump was unable to flip the San Francisco-based 9th Circuit Court of Appeals, which he called “a disgrace” after its liberal majority thwarted several of his policies. Still, Trump shifted it much more to the right by appointing 10 of the 29 active judges. The Senate recently confirmed Biden’s eighth judge to that court.
The 9th Circuit likely would play a key role in another Trump presidency because it is where officials in deeply Democratic states like California and Washington would go to try to block his policies. But Trump’s appointees to the court could make it less likely to rule against Trump, said Chemerinsky, the University of California, Berkeley, law school dean.
“It is a much more conservative court because of 10 Trump appointees,” he said.
But Douglas said he’s worried about whether the power of the courts will be enough to save the country from Trump, particularly if he is convicted in the 2020 election case and still wins.
“If the American people are willing to elect a guy who has been convicted of subverting a democratic election and has basically announced his second presidency will be a vengeance tour … then I suppose even the courts themselves, there’s just so much they can do to keep things in line,” Douglas said.