Washington — After seeing success in reshaping the federal judiciary in his first term and the initial two years of his second administration, President Trump and Republicans’ campaign to shift the courts to the right could be coming to an end with Democrats poised to take control of the Senate next year.
During his first term in office, Mr. Trump successfully put more than 230 judges on the federal bench, including three justices on the Supreme Court, remaking the judicial branch for decades. So far during his second term, the Senate has confirmed 57 of the president’s judicial picks. In total, Trump nominees make up about one-third of active federal judges.
But Democrats are now poised to control at least 54 Senate seats, and as many as 56 depending on the outcome of races in Mississippi and Alaska, making it unlikely that Mr. Trump will fill many more vacancies on the U.S. district and appeals courts.
“No one, or nearly no one, is going to get confirmed, so what he does in terms of nominating people, we’ll see,” Ed Whelan, a distinguished senior fellow at the Ethics and Public Policy Center and former law clerk to the late Justice Antonin Scalia, told CBS News.
There are currently 28 vacancies on the federal courts and another 15 seats that will open up in the coming weeks and months. So far, the president has formally sent to the Senate 16 nominees for those existing and future vacancies, though it’s possible he submits more names for consideration before the current Congress finishes its work. Mr. Trump announced on Truth Social earlier Tuesday three more nominees to district courts in Texas and South Carolina.
The GOP-led Senate Judiciary Committee is moving quickly to advance those picks before control of the upper chamber changes hands. It voted to advance four of the president’s district court candidates and held confirmation hearings for four other judicial nominees Tuesday.
The panel is expected to hold more confirmation hearings next week, a break from committee practice of holding those proceedings every other week, according to a source familiar with the panel’s workings.
Republicans are violating “numerous longstanding standards in a desperate attempt to confirm more than 30 qualified loyalists to lifetime appointments before Democrats take the majority,” Sen. Dick Durbin, the top Democrat on the Judiciary Committee, said Tuesday.
Durbin raised concerns about two of Mr. Trump’s latest picks to serve as federal judges in Texas: James Sullivan, who lost his bid for reelection to the Texas Supreme Court last week, and T. Elliot Gaiser, the head of the Justice Department’s Office of Legal Counsel whose only tie to Texas is a one-year clerkship for a judge on the U.S. Court of Appeals for the 5th Circuit.
The Judiciary panel received information from Sullivan after he lost his campaign for Texas Supreme Court justice last week and from Gaiser on Nov. 8, before the president announced his intent to nominate each man, according to the source. Both are slated to appear before senators for confirmation hearings next week.
“There are many things we still can do, and I hope we’ll use them. And one of them is not to expedite nominees who have not been carefully vetted,” Durbin said. “I hope we don’t accept that as a standard in this committee.”
But Sen. Chuck Grassley, an Iowa Republican who chairs the Judiciary Committee, pushed back on Durbin’s claim that he is departing from its typical practices. He argued that there are no committee rules about how quickly it can move to hold confirmation hearings or when those proceedings are held, and said chairs have discretion to set the panel’s schedule.
“Historically, this committee has shortened timelines when circumstances warrant it,” he said.
In anticipation of Democratic control of the upper chamber, Republicans are expected to make judicial nominees a focus of the lame-duck period.
“The priority is going to be getting the judges across the finish line,” Senate Majority Leader John Thune told reporters Monday.
But seats on the federal bench that remain open come the end of the current Congress are likely to remain unfilled for at least the next two years.
“For the past two years, we’ve seen Trump seeking to stack our courts — district courts, circuit courts — with loyalists to him and not to the Constitution, and I think he’s going to try to continue to do that,” Rachel Rossi, president of the Alliance for Justice, a progressive judicial advocacy group, said. “In this moment, when Trump has clearly created this litmus test that there must be loyalty to him and not the Constitution, it’s hard to see how Democrats can support nominees going forward.”
It is not unprecedented in the Senate for the party in control to stymie the nominations of a president in the opposing party. During the final two years of former President Barack Obama’s administration, when Republicans held the Senate majority, just 20 of his nominees to the district and appeals courts were confirmed. Obama’s final judicial confirmation came six months before the end of his second term. Among the candidates that did not get a vote from the GOP-led Senate was Merrick Garland, who was nominated to replace Scalia on the Supreme Court following his death in February 2016.
“What we’ve seen is the federal courts being stacked with extremists and loyalists, and now Democrats have the power to stop the reshaping of our courts in a very dangerous direction,” Rossi said. “I think there’s increasing visibility on what judges mean and what these lifetime seats mean, and the hope is that Democrats use their power and stand against any further reshaping of our judiciary.”
Of the 43 current and future vacancies, Mr. Trump has not yet announced candidates for more than half of those seats. Many of those are in states that will be represented by either two Democratic senators or one Republican and one Democratic senator next year.
Democrats could work with the White House to find consensus on candidates to serve on the district courts in their states, but it’s unclear whether there is an appetite from either side to do so.
“Republicans on the Senate Judiciary Committee and the Trump administration have gutted the committee’s oversight and confirmation authority,” Sen. Sheldon Whitehouse, a Rhode Island Democrat who is expected to lead the panel next year, said in a statement. “There needs to be accountability for years of Republican bad behavior, and a hard reset on the nominations process next Congress.”
Democrats’ rout of Republicans in last week’s midterm elections also makes it unlikely a Supreme Court justice appointed by a GOP president steps down in the final two years of Mr. Trump’s term, given that a successor would likely not clear the Senate.
The president made a significant impact on the nation’s highest court, appointing three of the nine justices. Among those was Justice Amy Coney Barrett, who filled Justice Ruth Bader Ginsburg’s seat following her death in September 2020, during Mr. Trump’s first term.
Justices Clarence Thomas, 78, and Samuel Alito, 76, are the two oldest members of the high court, but Alito told The Wall Street Journal in August, “I’m here for another term.” Alito also told CBS News chief legal correspondent Jan Crawford last month that while he considered retirement earlier this year, he feels he can still make a contribution to the Supreme Court.
With neither justice expected to step down during the lame-duck session, it could be several years before there is both a GOP president and Senate in place to confirm their potential successors on the Supreme Court, raising concerns among conservatives that a Democratic president and Senate could fill the seats of the influential conservative justices.
“Trump has managed to put in jeopardy his biggest achievement,” Whelan said.
