What happens to federal judicial confirmations if Dems pull off a Senate majority tonight?

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It’s Election Day, and Nate Silver has officially frozen his model Senate forecast giving Democrats a 1 in 6 shot (~20%) chance of winning a Senate majority.

We go into tonight knowing that this the worst Senate map for Democrats in almost a century. Nevertheless ,1 in 6 represent better odds than Trump had on Election Day 2016— and we all know how that turned out.

Over the past two years, Mitch McConnell and Chuck Grassely have been confirming judges to the Supreme Court, federal appellate courts and federal district courts at a startling pace. As of Election Day, total judicial confirmations in the 115th Congress stand at 87 — a huge number.

So, what happens to federal judicial confirmations if Democrats pull off a Senate majority tonight?

  1. Lame duck confirmation mania. Expect Grassley and McConnell to confirm as many nominees as possible during the lame duck session. Precedent is out the window. The Senate Judiciary Chairman has already shown he is willing to holding hearings for nominees even when the rest of the chamber is in recess. So if Dems snatch control expect a wave of confirmations before they are sworn in.
  2. No more packing. Once Dems control the Judiciary Committee, expect thing to grind to a near total halt. This is what the GOP did in the last two years of the Obama administration, where the conservative majority confirmed the lowest number of judges since the 1950s.
  3. Blue slip is back. Judiciary Dems will restore regular blue slip rules that the GOP demolished. Blue slips allow a Senator to unilaterally block a judicial nominee from their home state for any or no reason. Grassley scrapped this longstanding rule. It will be restored. If a single Dem objects to a Trump nominee from their home state, that nom will be DOA.
  4. No more stacking. Grassley had been doubling up appellate court judges on a single panel to allow for fewer questions and quicker confirmations. Judiciary Dems will not only end this stacking, they will end confirmation of any appellate court judges unless there is a nominee with enthusiastic home-state Dem support.
  5. We will see the last of the bigots. According to Lambda Legal, 1 in 3 of Trump’s judicial nominees have been anti-LGBTQ. Any future nominees in the mold of an Allison Rushing, who has spent her career working with the extremist anti-LGBT organization, Alliance Defending Freedom, or a Kyle Duncan, who defensed of the North Carolina’s anti-trans laHouse Bill 2 (HB 2), would be non-starters. Only non-controversial noms need apply.
  6. No more SCOTUS confirmations. Now that the filibustering of SCOTUS candidates has been nuked by the GOP, 51 votes is all it takes to block any Trump nomination to SCOTUS. That will ensure that (if Dems stick together), the extreme nominees on Trump’s shortlist would be no-goes. There would be incredible pressure from the Dem base for the new majority to block any nominee until after the 2020 election as payback for the stonewalling of Merrick Garland. So if anything happened to one of the serving Justices or if Clarence Thomas stepped down, Dems would be in good shape to hold the line until a Dem potentially retakes the White House.

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