Republican senators are urging some of their colleagues, including Vice President-elect JD Vance, R-Ohio, and Donald Trump's Secretary of State pick Marco Rubio, R-Florida, to get back to the office and block Democrats from confirming judges during the lame-duck session while they still have the majority and the White House.
After their absences helped Senate Democrats to confirm several of President Joe Biden's nominees, Republicans fumed about Vance, Rubio and others during their weekly caucus lunch and to reporters. “I’m not going to bubble wrap it,” said Sen. John Kennedy, R-La. “There’s no excuse for that, it’s our job to be here and vote.”
“We want to see [Vance] and some of our members back because of these votes we’re having,” Sen. John Hoeven, R-N.D., told reporters. “Particularly on some of the circuit court judges.”
Trump himself issued marching orders on Truth Social on Tuesday. "The Democrats are trying to stack the Courts with Radical Left Judges on their way out the door," Trump declared. "Republican Senators need to Show Up and Hold the Line — No more Judges confirmed before Inauguration Day!" he wrote, just a few hours after he invited several GOP senators, including Sen. Ted Cruz, R-Texas, to witness a SpaceX launch while the rest of the chamber was voting.
If they were present, Democrats might not have been able to confirm several of Biden's judges, with Sen. Joe Manchin, D-W.V., and Sen. Kyrsten Sinema, I-Ariz., playing they typical roles as wild cards and Vice President Kamala Harris, who casts tie-breaking votes, on vacation in Hawaii.
Embry Kidd, a Florida Democrat, passed his confirmation vote to the Atlanta-based Eleventh Circuit Court of Appeals on Monday despite opposition from Manchin, prompting outrage from Florida Gov. Ron DeSantis. "This leftist judge would have been voted down and the seat on the important 11th circuit would have been filled by Donald Trump next year had Republicans showed up," he tweeted.
On Tuesday, Mustafa Taher Kasubhai passed by a 51-44 vote to be confirmed as U.S. District Court judge in Oregon. Vance, who said he was busy interviewing candidates for federal office under a Trump administration in a now-deleted tweet, rushed back after the procedural vote to oppose the confirmation itself, but it was too late to make a difference.
The Wall Street Journal editorial board did not accept Vance's excuse, writing that while he was “on the job that begins in January, which is two months away,” his neglect of his current job allowed Biden to get his nominees "a lifetime appointment to the federal bench because Republicans couldn’t get their full team on the field.”
At the time of the Nov. 5 election, there were 47 vacancies on the federal bench, with 17 nominees awaiting confirmation. Biden has since named several more nominees in hopes that they would pass the Senate hurdle before the chamber switches to GOP control on Jan. 3, 2025. As of Wednesday, there are 30 nominees pending.
To get them all passed on time, Senate Majority Leader Chuck Schumer, D-N.Y. is racing against GOP senators who are trying to drag out the process by forcing time-consuming votes on typically routine procedural steps. The delays kept everyone voting late into the night, to no one's pleasure.
“Last night, we were sitting around voting time and time again for these liberal judges that Chuck Schumer wants to put in and ram through at the very last minute before the balance of power shifts,” complained Sen. Shelley Moore Capito, R-W.V., on Tuesday. “I would implore our leadership to go to the important issues the American people are thinking about: that’s completing our work at the end of the year and moving into next year.”
Her and Trump's gripes over lame duck nominations are a reversal of the late 2020 dynamic, in which the GOP first defied precedent to confirm 23 of Trump's judicial nominees even after Biden had won and Democrats were projected to control the Senate following two December runoff victories in Georgia. Republicans at the time made no secret of their accomplishment.
“This week we will confirm five district court judges, bringing the total number of judges we’ve confirmed over the last four years to nearly 230. Confirming good judges is one of our most important responsibilities as senators,” crowed Sen. John Thune, R-S.D., in a Senate floor speech in late November 2020. He is set to replace Sen. Mitch McConnell, R-Ky., as Senate GOP leader in the next congress.
Now, he is spinning a different line. “If Sen. Schumer thought Senate Republicans would just roll over and allow him to quickly confirm multiple Biden-appointed judges to lifetime jobs in the final weeks of the Democrat majority, he thought wrong,” Thune told ABC News.
“[Republicans] can try dilatory tactics, but we're going to persist,” Schumer told reporters on Tuesday, warning of the possibility of another round of late-night votes on Wednesday.
Should the Democrats succeed with most or all of the nominations, Trump will have around just 20 judicial vacancies to fill upon assuming office in January. It's a far less open field than the 108 vacancies he had at the start of his first term.
