WASHINGTON — The collapse of the planned nomination of Chad Meredith to become a federal judge in eastern Kentucky likely means the court will remain in its current form for months as the White House looks to steer clear of further political headaches with the midterm elections approaching.
Sen. Mitch McConnell said on Monday there’s “no vacancy unless someone else is confirmed,” indicating that Judge Karen Caldwell would continue to serve on the bench unless consensus developed around a replacement.
Caldwell’s name remains on a list of future judicial vacancies to this day, but the timing of her departure is characterized as “to be determined,” meaning it is likely predicated on finding her successor, a prospect that analysts say is remote in the near-term.
“It’s unlikely they prioritize this nominee,” said Sarah Binder, a senior fellow in governance studies at the Brookings Institute in Washington on interest of the White House to revisit the judgeship. “I’d bet against it getting filled in this particular Congress.”
McConnell said Monday Caldwell has not taken senior status, meaning she continues to work as a judge.
“What she said is that she would take senior status if someone else is confirmed,” McConnell said. “I think at the moment we’re kind of at a stalemate.”
Caldwell’s office did not respond to a telephone message inquiring if and when she still intends to leave her post.
For a new nominee to earn any momentum, both of Kentucky’s senators, McConnell and Rand Paul, would first need to agree on a candidate. Paul unexpectedly torpedoed Meredith’s nomination-in-waiting last month because he accused McConnell of not consulting with him before Meredith was presented to the Biden administration.
“They’re not picked by one senator or the other, it’s a discussion between two senators. We’re more than open to having those conversations when Sen. McConnell’s ready,” Paul told KET last week.
But even if McConnell and Paul did come to an accord on a judicial candidate, they would be up against a pair of complicating political factors: A White House under pressure to prioritize judicial openings in blue states and a midterm congressional election that is now just over two months away.
“Without Paul’s consent, the nomination would fail, and the White House probably doesn’t want to take additional political hits,” said Josh Hudor, a senior fellow at the Government Affairs Institute at Georgetown University. “In this case, the Senate calendar may be the biggest obstacle, pending Biden has a nominee in mind. That’s not a given.”
A White House spokesperson offered no update about when the administration would revisit this planned vacancy.
Meredith, an anti-abortion member of the Federalist Society, was pitched to replace Caldwell, who signaled her intention in late June to take senior status, which would open up a full-time slot.
But the Supreme Court’s nullification of the federal right to an abortion in late June made the nomination of a foe of abortion rights exceptionally radioactive to Democrats.
Given the blowback Biden received from progressives across the country responding to Meredith’s planned nomination, there’s little incentive for him to revisit the judgeship and accommodate McConnell at a time when he’s trying to motivate his party to buck historical midterm election trends.
Since Meredith’s nomination faltered, Democrats have pressured Biden to prioritize vacancies in states with two Democratic senators to appoint liberal judges. There are approximately three dozen current or planned vacancies in blue states without announced nominees. For example, there’s a district court in California with a vacancy that hasn’t been filled since 2015.
“The Senate should commit to holding confirmation votes on all remaining executive nominees before the end of December,” wrote Russ Feingold, a former Democratic senator from Wisconsin in an op-ed, urging his party to “play hardball to thwart Mitch McConnell.”
“McConnell and his Republican allies have repeatedly gotten away with gaming the system to hijack vacancies, including on the Supreme Court,” Feingold continued. “They should not be allowed to get away with it again.”
Feingold’s fear is that if Democrats lose the Senate this November, they’ll lose the opportunity to fill such posts for years, allowing judicial vacancies to languish and slowing the flow of caseloads.
Russell Wheeler, a visiting fellow of governance studies at the Brookings Institute, said that even if Caldwell chose to eventually take senior status, a vacancy of a half year or longer wouldn’t be abnormal and likely would not seriously impact the eastern district’s ability to function.
“The district does not have an especially burdensome caseload,” Wheeler said, noting it ranks 79th nationally in civil filings and 36th in criminal felony cases. “This seems less a case of a district that desperately needs a vacancy filled and more a case of the minority leader wanting a favor.”
Short of Biden’s willingness to work with McConnell, the minority leader’s best shot at filling the judgeship in eastern Kentucky is to reclaim his role as majority leader.
“Were Republicans to win back control of the Senate … Biden would not get a lot of judges confirmed,” said Bider, “but it’s certainly possible that if there were a change in party control, [the Kentucky seat] would get more attention.”
McConnell has been expressing less confidence in that prospect in recent weeks.
Speaking in Scott County on Monday, he scolded Democrats’ spending packages over the past two years, but did not tout a favorable political environment for the GOP that he heralded in the spring.
“I can’t think of many ways they haven’t mismanaged this economy. Whether or not they’ll end up paying a price for it this fall is unclear,” he said.
____
(Austin Horn contributed reporting.)
____
