Senate elections could shape judiciary for years to come

Democrats argue that a Republican-led Senate would block future presidential judicial nominations, period.

Senate Minority Leader Mitch McConnell, R-Ky., said in recent interviews that he would force Biden to moderate his picks if the GOP regains control of the Senate — which right now hinges on victories in toss-up races in Nevada, Pennsylvania, Georgia and Wisconsin.

“Many of the appointments the president has made during the first two years have been quite extreme,” McConnell said in an interview with CNN earlier this month.

Democrats warn that Republican control of the chamber will only lead to the same opposition that blocked President Barack Obama’s judicial selections in 2015 and 2016.

McConnell, the Senate minority leader, united Republicans to block all of Obama’s judicial nominations by denying Democrats the 60 votes needed to move a nomination to the floor for a confirmation vote.

That forced Senate Majority Leader Harry Reid, D-Nev., to eliminate the filibuster for circuit and district court appointees, although he left intact the 60-vote threshold for Supreme Court justices.

McConnell eliminated the filibuster for Supreme Court nominees when Republicans gained control.

Blocking strategy

Academic law experts say McConnell’s gambit to block lifetime appointments on the federal bench by a Democratic president is a real likely scenario if the GOP wins control next month.

“Nobody will get confirmed,” said Carl Tobias, University of Richmond School of Law professor and founding faculty of the UNLV William S. Boyd School of Law.

“What we will see is what we saw in 2015 and 2016,” Tobias told the Review-Journal.

With Senate control still teetering on several close Senate races, including the brawl in Nevada, Democrats are battling to keep their razor-thin majority and confirm Biden’s nominees.

Ironically, it could come down to the Nevada race between U.S. Sen. Catherine Cortez Masto, handpicked by Reid to replace him six years ago, and Adam Laxalt, a former state attorney general and a candidate backed by McConnell and former President Donald Trump.

Trump installed 231 conservative federal judges, and three Supreme Court justices, on the federal bench during his four years in office, according to the Administrative Office of the U.S. Courts.

Biden, too, has made significant inroads in his first two years, appointing 84 judges and one Supreme Court justice with a record number of women and minority nominees.

U.S. Sen. Dick Durbin, D-Ill., chairman of the Senate Judiciary Committee, said confirmations this year will continue. He called it the “priority of this Congress.”

Diversity on the bench

Of the Biden judicial nominees, 76 percent have been women, compared with 29 percent of Trump nominees; and 65 percent of Biden picks were non-white, compared with 12 percent of Trump judges, according to a nonpartisan Pew Research Center study.

Thomas Jipping, a senior legal fellow writing for the conservative Heritage Foundation, summarized Biden’s approach as emphasizing personal and professional diversity to appoint judges who will reliably advance liberal interests.

Conservatives criticized Biden for promising on the 2020 campaign trail to select an African American woman to fill a Supreme Court vacancy. Liberals lambasted Trump for pledging in 2016 to select only pro-life candidates for judicial seats.

Biden and Trump did as promised, despite the criticism.

Trump successfully appointed three conservatives to the Supreme Court, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The selections have shifted the ideological direction of the highest federal bench.

Another major battleground in the ideological war over the judiciary is the San Francisco-based 9th U.S. Circuit Court of Appeals, which includes Nevada and eight other states, as well as two U.S. territories. It is made up of 29 judges.

Battle in the 9th Circuit

The 9th Circuit, once considered the nation’s most liberal judicial district, so angered Trump that he vowed to reshape it after judges issued numerous rulings that blocked many of his executive orders on travel bans, the border wall and executive authority.

Trump appointed conservatives to the 9th Circuit Court, including former Nevada Solicitor General Lawrence VanDyke.

Appellate Judge Johnnie Rawlinson, the first African American woman to serve as a U.S. District Court judge in Nevada, has signaled she is prepared to take senior status from the 9th Circuit Court, where she was elevated by President Bill Clinton in 2000.

Rawlinson told the Review-Journal earlier this year that she was on a list of those considered for a Supreme Court nomination by Obama.

She was not in the mix this year when other Black, women jurists, whom she knew, were considered for the vacancy created by the retirement of Justice Stephen Breyer.

“Time has passed me by,” Rawlinson told the Review-Journal in February, acknowledging her long tenure on the bench.

Instead Biden nominated, and the Democratic-controlled Senate confirmed, Judge Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court.

Rawlinson has served on the appellate bench for 23 years. A decision to take senior status would create a vacancy requiring recommendation by Nevada U.S. senators, a nomination by Biden, and confirmation by the Senate.

Rawlinson has made the situation more controversial by publicly requesting her former law clerk, Berna Rhodes-Ford, general counsel to Nevada State College and the wife of Nevada Attorney General Aaron Ford, be nominated to replace her.

The state’s two U.S. senators have made no commitment to the request.

Influence in Nevada picks

During the past six years, Cortez Masto and fellow U.S. Sen. Jacky Rosen, D-Nev., as well as Laxalt, have been influential in selections to the federal bench.

Cortez Masto and Rosen recommended UNLV law professor Anne Traum and state District Court Judge Cristina Silva to the White House to fill federal judicial openings that were considered emergencies because of how long they were left vacant.

Trump nominated VanDyke, who served under Laxalt, to his seat on the 9th Circuit.

But the success in filling judicial vacancies in Nevada, and the hyper-partisan process in Washington, has not been smooth.

VanDyke broke down in tears during his Senate confirmation hearing under Democratic questioning about his character, and an American Bar Association report that he was not qualified for the position.

Traum, first nominated by Obama in 2016 for a federal bench in Nevada, never received a Senate hearing. Her nomination died for lack of action. The same thing happened in 2020, after Trump nominated former District Court Chief Judge Jennifer Togliatti to the federal bench; her nomination expired before a Senate confirmation vote was held.

McConnell held up all judicial nominations that year to prevent District of Columbia Circuit Court Judge Merrick Garland from filling the Supreme Court seat left open when Justice Antonin Scalia unexpectedly died in Texas.

Special interest influence

In addition to the political warfare in the Senate over judicial nominations, special interest groups now have a larger role in the process.

None of the groups hold more sway than the conservative Federalist Society, which funds a network to select, vet and push conservative judicial candidates for presidential nomination.

The group was formed to counter a liberal tilt to the judiciary. It has reported an annual budget of $20 million in revenue, but donors have provided much more to the nonprofit, where spending is directed by Vice President Leonard Leo to reshape the ideological makeup of the federal courts.

On the liberal side, the Alliance for Justice, the American Constitution Society and a host of other groups raise and spend funds to advocate for progressive jurists for the federal system.

Tobias, the judiciary scholar, said despite the numerous groups involved in the selection process, conservatives have a distinct advantage due to Leo’s control over a “faucet of money.”

“No one is a match on the “D” side to the Federalist Society,” Tobias said.

That makes Senate control a top priority, particularly for Democrats, he said.

Biden has been able to appoint circuit court judges who have reshaped the Philadelphia-based 3rd Circuit Court of Appeals and the New York-based 2nd Circuit Court of Appeals, Tobias said.

Up to now, “Biden has made inroads,” Tobias said.

Contact Gary Martin at gmartin@reviewjournal.com. Follow @garymartindc on Twitter.