While Senate Majority Leader Charles E. Schumer pushes to confirm many of Biden’s judicial nominees through the lame-duck session, Republicans have employed a series of procedural tactics to slow down the process as much as possible.
When Schumer attempted to file cloture on nominees Monday evening, a procedural step typically done in just a few minutes with unanimous consent, Sens. John Barrasso, R-Wyo., Tom Cotton, R-Ark., and John Thune, R-S.D., asked for the yeas and nays on each motion.
That forced the chamber into a series of 18 roll call votes lasting more than four hours as it moved back and forth from legislative to executive session. By the end, shortly before midnight, cloture had been filed on nine district court judges.
Then, when the first scheduled cloture vote was about to begin Tuesday morning, Sen. Mike Lee, R-Utah, objected to a motion from Sen. Christopher S. Murphy, D-Conn., to waive the mandatory quorum call, another procedural step typically occurring without incident.
It then took around 40 minutes for the Senate to move to the scheduled vote to invoke cloture on the nomination of Mustafa Kasubhai to be a U.S. district judge for the District of Oregon.
The delay tactics didn’t prevent Democrats from confirming any judges. But it leaves Democrats with just one option – play the waiting game.
“They’re going by the rules, and the rules are the rules, but I think our persistence and determination will overcome their obstruction delays,” Sen. Alex Padilla, D-Calif., said.
Sen. Mitt Romney, R-Utah, said the Democrats are not doing anything immoral when they try to push through Biden’s nominees before the end of the year. “It’s exactly what we do in the same circumstances, but it’s our job to try and slow it down,” Romney said.
Sen. Josh Hawley, R-Mo., said Biden lost an election. “It takes unanimous consent on our part to speed up the process and to make it easy for him. Why would we do that?” Hawley said.
Four years ago, when Trump was a lame duck president, Republicans confirmed 18 of Trump’s judicial nominees between the presidential election and the end of the Congress, including one appeals court judge and 12 district court judges, according to Senate records.
Among those was the confirmation of a consequential nominee: Aileen Cannon to be a judge for the U.S. District Court for the Southern District of Florida.
Cannon would go on to preside over the criminal case related to Trump’s retention of classified documents after his presidency, where he faced more than three dozen charges including false statements, concealing government records and conspiracy to obstruct justice.
Cannon in 2022 initially ruled in Trump’s favor to prevent the Justice Department from using classified documents seized in this summer’s search of Mar-a-Lago in a criminal investigation. A panel of judges at the U.S. Court of Appeals for the 11th Circuit reversed her ruling, and the Supreme Court declined to hear Trump’s appeal of that ruling.
Then in 2024 Cannon dismissed the case against Trump, finding that the special counsel handling the case was appointed unconstitutionally. The Justice Department has appealed that ruling to the 11th Circuit as well, but Trump’s election means the charges against him will not go forward.
Attendance has also become a flashpoint for some Republican senators as the clock winds down on the Senate’s work for the year.
On Monday, the Senate voted 49-45 to confirm Embry Kidd to the U.S. Court of Appeals for the 11th Circuit. Sen. Joe Manchin III, I-W.V., voted against the confirmation, and five Republicans did not vote, including Sens. JD Vance of Ohio, the vice president-elect, and Marco Rubio of Florida, Trump’s pick to be secretary of State.
Carrie Severino, the president of conservative advocacy group JCN, pointed Tuesday to the 49-45 vote to confirm Embry Kidd to the U.S. Court of Appeals for the 11th Circuit.
“If all of the Republican Senators showed up, Kidd’s nomination would’ve been rejected 49-50 and President Trump may have had an opportunity to fill the vacancy instead,” Severino said on social media.
Prior to Tuesday, Vance had not cast a vote in the Senate since being named Donald Trump’s running mate in July. He showed up to vote Wednesday, as criticism of Republican lack of attendance to block Biden nominees bubbled up in conservative commentary circles.
On Wednesday morning, if all Republican senators had voted on two judicial nominations, it might have required Vice President Kamala Harris to vote to break a tie.
The Senate voted 50-48 to confirm Rebecca L. Pennell to be a judge for the U.S. District Court for the Eastern District of Washington and 50-48 to invoke cloture on the nomination of Amir H. Ali to be a judge for the U.S. District Court for the District of Columbia. The two absences were Sen. Ted Cruz, R-Texas, and Mike Braun, R-Ind., who will leave the Senate in January to become governor of Indiana.
North Carolina Sen. Thom Tillis said he was “very angry” over the attendance issues.
“Ninety percent of success in life is showing up. We could have stopped those 18 votes after that first vote if we had shown up that day,” Tillis said. “I don’t think it’s unreasonable to make damn sure we’re all there at the strike of the gavel. It’s that simple.”
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