Senate Republicans are pushing forensic endorsements after the elections, breaking a 123-year tradition against voting on nominations for an outgoing president of the defeated party during a session with lame ducks.
The Senate has confirmed six candidates for district courts since it was reunited following the November 3 election in which Democrat Joe Biden defeated President Donald Trump. The court nominees confirmed this week that another Trump candidate has been classified as unqualified by the American Bar Association.
Senate Majority Leader Mitch McConnell (R-Ky.) Is also keen to confirm Trump’s two remaining constituencies whose nominations came after Judge Amy Coney Barrett was appointed to the Supreme Court by the U.S. Court of Appeals for the Seventh Circuit and the death of a first circuit are judges.
“I don’t see how you can get this back,” said Russell Wheeler, a visiting scholar at the Brookings Institution studying forensic nominations.
Since 1897, judicial candidates have not been confirmed after election by presidents who lost re-election or whose party was defeated, Wheeler said. There is one exception, however.
The Senate confirmed Stephen Breyer for the First Circuit in 1980 after Republican Ronald Reagan defeated Democrat Jimmy Carter. Breyer, who was chief counsel for the Senate Judiciary Committee, was readily sustained 14 years before his appointment to the Supreme Court.
This time around, McConnell is keen to fill vacancies before the current Congress ends, though the window is quickly closing for the time available to push through judicial candidates with budget and other priorities.
“We’re going to go over the tape,” McConnell told conservative radio host Hugh Hewitt on October 30, after Barrett’s confirmation. “We’re going through the end of the year, and so is the president.”
The next roll-call votes are planned for November 30th.
When asked about the tradition of not verifying judges in a lame duck session, a McConnell spokesman pointed to the Senate norms that the Democrats abandoned as part of the judiciary nomination process.
Judicial officer nominations have become more partisan over the past few decades, with the result that both parties have discarded procedural habits. Democrats removed the 60-vote threshold for lower-court and executive candidates in 2013, and Republicans removed that standard for candidates for the Supreme Court during Justice Neil Gorsuch’s confirmation in 2017.
McConnell has prioritized district court candidates from red states throughout Trump’s tenure, including the previous Lame Duck session.
The hearings continue
The Senate Justice Committee held a hearing Wednesday for Federal Attorney Thomas Kirsch, Trump’s candidate to take Barrett’s old seat on the Illinois-based Seventh Circuit.
The US Attorney for the Northern District of Indiana and former partner of Winston & Strawn LLP encountered opposition from the Democrats because of his conservative legal philosophy and the lack of diversity he would bring to the all-white Seventh Circuit. However, these concerns are unlikely to prevent its confirmation. It was rated “well qualified” by the ABA.
During the hearing, Kirsch also found himself in an unusual debate among lawmakers over the application of conservative legal philosophies, originalism and textualism to the landmark Supreme Court decision to end school segregation, Brown v. Board of Education.
Kirsch said he would apply the usual meaning at the time of writing the text and that his responsibility was to apply the Supreme Court precedent. He also later said he agreed that Brown was rightly decided, as many nominees have done in recent months.
Nominations on deck
This week, the Senate confirmed four candidates for district courts and one candidate for an international commercial court.
One of them was Jones Day’s attorney, Kathryn Kimball Mizelle, who was deemed “Unqualified” by the ABA due to lack of experience. The Senate confirmed Mizelle, 49-41, on Wednesday in the central Florida district.
She is the 10th Trump nominee rated the lowest rated independent group and the eighth “unqualified” selection the Senate endorsed during the Trump era.
The ABA usually requires at least 12 years of experience to evaluate a qualified candidate. Mizelle was admitted to the Florida bar in September 2012, the ABA said, “a pretty significant departure from the 12-year minimum,” the ABA said in a September letter.
Stephen Vaden was also confirmed in the US Court of International Trade on Wednesday.
Time may expire before the Senate can fill the other posts on the Federal Court of Appeals. On November 13th, Trump announced Raúl Arias-Marxuach as his candidate for the First Circuit. Arias-Marxuach, a judge in the US District Court in Puerto Rico, would replace Juan Torruella, who died on October 26.
There are a number of other trial candidates awaiting action by the Judiciary Committee, but it is unclear whether the panel will accept them. Most are from California and New York, two blue states.