Remember back in August, when Senate Democrats struck a deal with Mitch McConnell to confirm a package of 15 judges to lifetime appointments on the federal judiciary? That was fun. So fun, in fact, that we’re doing it all over again: Politico reported this morning that McConnell is preparing another package of judicial nominees, and Democrats are “wrestling over how hard to fight.”
According to Politico, the problem is, once again, getting red state Democrats like Heidi Heitkamp and Joe Manchin home to campaign:
The challenge is clear: Democrats can’t consent to too speedy a consideration of more judges because liberals, inside their caucus and outside the Beltway, are still livid about how Kavanaugh’s confirmation went. But they can’t slow things too much without keeping their red-state members off the campaign trail, a choice some may make unilaterally by skipping future votes.
Right after Kavanaugh was confirmed, the site reported McConnell still wasn’t “done with his ‘project’ to revamp the nation’s courts”:
Hours before the Senate was set to approve Brett Kavanaugh to the Supreme Court, the Senate majority leader said in an interview Saturday that he plans confirmations of more lifetime justices before the November election. The Kentucky Republican plans to meet with Senate Minority Leader Chuck Schumer (D-N.Y.) about a package of nominees — and Schumer’s response could determine when or whether Schumer’s vulnerable members will be able to go home and campaign for their seats.
Republicans have the votes to confirm these judges no matter what. But it’s an odd political decision for Democrats to not even try to oppose them, especially coming off what was clearly quite an energizing moment for their base in the fight over Kavanaugh. This isn’t about expecting Democrats to somehow win despite the numbers: It’s about expecting Democrats to do their job by opposing these judges. Just because you can’t win doesn’t mean you should essentially switch sides and actually help our wet president continue confirming more judges than any other recent president.
Here is my proposal: What if, instead of fretting about keeping red state Democratic senators in town to vote on Trump judges, Chuck Schumer just... didn’t do that, and let them miss the votes? Let them go free. Send ‘em home. Meanwhile, you slow down the process and refuse to negotiate on a package of judges. Make McConnell put them all up individually.
Brian Fallon, the executive director of Demand Justice and a former Schumer staffer, told Splinter he essentially had the same idea: “The easy solution here is that the red state Democrats skip town to go home and campaign if they want, but the rest of the caucus keeps the Senate in session to slow down Trump’s judges. Let Chris Van Hollen and Mark Warner hold down the fort in DC while Joe Donnelly stumps in Indiana.”
Former Harry Reid staffer Adam Jentleson also proposed Democrats do this during the last fight over Trump judges, as Vox reported:
Jentleson said that Democratic leaders could “take a stand” by putting one senator on the floor at all times to object to a nomination. That would force McConnell to run through the “cloture” process for each nominee, meaning he would need to get 51 votes to end debate and start a vote to approve the nominee. Therefore, two rounds of votes would be required, each requiring 51 senators to agree.
At the time, Jentleson said that this strategy may have enabled Democrats to block at least one Trump judge. But even if that weren’t the case—even if that were all for naught—the question is, what is the value in not fighting? What is so bad about having red state Democrats miss some votes? Do we think the voters of North Dakota will punish Heitkamp for missing a few votes on judges?
If the logic of confirming them in a quick and easy win for McConnell is that they’re going to confirm them all anyway, then it doesn’t matter if not all the Democrats are there to record their “no” votes. Let Heidi Heitkamp miss the votes. Free Heidi Heitkamp.
Bear in mind, too, that people don’t seem to mind Republicans missing these votes. The first half of that last tranche of judges were confirmed by unanimous consent on August 28. On that day, Sen. Ted Cruz, a Republican who could well get dunked on by a hot guy on the skateboard, was in Carthage, TX. He missed the vote! Why can’t vulnerable Democrats do the same?
This isn’t the most consequential fight in the world—although Trump is transforming the judiciary by the sheer volume of confirmations he’s pushed through with the Republicans’ help. It’s not like Kavanaugh, where for a while, it really looked like Democrats might have been able to take him down. The only consequence is what this conveys to Democratic voters. It tells them that the party shies away from a fight, unlike the Republicans, who do not give a shit about politeness and norms unless they’re using them to defeat Democrats.
A Democrat should never help a Trump judge get confirmed. It’s as simple as that.
Update, 4:57p.m.: Politco’s Burgess Everett reports that Senate Democrats have made a deal to vote on a package of Trump judges:
The votes are happening right now.