GOP Faces Hurdles in Lame-Duck Push to Confirm Trump Judges Amidst Internal Strife

With Democrats poised to take control of the Senate in January, Republicans are engaged in a hurried effort to confirm two dozen of President Donald Trump’s judicial nominees before the transition. This accelerated timeline has encountered significant challenges, including internal disagreements and potential procedural roadblocks.

A notable instance occurred when Republican Sen. Ted Cruz contacted a Justice Department lawyer regarding a potential judicial seat in Texas, a state that recently elected a Democrat, James Talarico, who could hold veto power over district court nominees. Shortly after, Trump nominated T. Elliot Gaiser, head of the DOJ’s Office of Legal Counsel, for a position.

However, the compressed schedule has intensified conflicts between the White House and Republican senators over the president’s selections. These stalemates have already necessitated a change in a nominee for an appeals court seat, potentially delaying its confirmation. Furthermore, at least one district court nomination in Oklahoma faces potential jeopardy due to opposition from a Republican senator from that state.

President Trump's impact on the judiciary, from the Supreme Court downwards, is considered a potentially enduring legacy of his presidency. The appointment of conservative judges could serve as a check on Democratic policies in the future. While Trump has appointed a significant number of judges, his pace in his second term has not matched his first, partly due to fewer vacancies.

Republicans are now concerned that Democrats may block any further nominations once they assume Senate control, increasing the urgency to confirm as many judges as possible in the remaining weeks. The limited time for negotiation has led to friction within the conservative legal community regarding the selection of nominees, with some critics, like South Texas College of Law professor Joshua Blackman, suggesting that political considerations have led to less-than-ideal choices.

Republican leadership is navigating these internal disputes alongside the threat of Democratic procedural tactics designed to impede the confirmation process. The Senate Judiciary Committee has established an ambitious schedule to expedite the remaining nominations, drawing accusations from Democrats of Republicans disregarding Senate norms. Wyoming Sen. John Barrasso, the Republican whip, emphasized the commitment to maximizing every moment to confirm these judges.

The Judiciary Committee meeting on Tuesday saw initial disagreements between its chair, Iowa GOP Sen. Chuck Grassley, and top Democrat Sen. Dick Durbin, concerning the speed of confirmations. However, it soon became apparent that the schedule was not the sole obstacle. Plans to vote on two Oklahoma federal court nominees were postponed due to opposition from Oklahoma's junior senator, Republican Sen. Alan Armstrong, reportedly with the support of North Carolina Sen. Thom Tillis. The White House maintains confidence in its nominees.

The White House was also compelled to withdraw a nomination for an Arkansas seat on the 8th US Circuit Court of Appeals after home-state senators objected to the chosen candidate, US District Judge Lee Rudofsky. This nominee was well-regarded by the conservative legal movement. Republicans will now need to restart the process for this seat with a new nominee, Arkansas Supreme Court Justice J. Cody Hiland.

Concerns have also been raised within the conservative legal community regarding a nominee for the 5th Circuit in Mississippi, who, while supported by Sen. Roger Wicker, is not seen as a staunch advocate for the movement's key causes. Blackman suggested that alternative candidates, such as Mississippi Solicitor General Scott Stewart, would have been preferred.

The nomination of T. Elliot Gaiser for a Texas vacancy, along with another for South Carolina, were announced as the White House faced these challenges. Texas Sen. John Cornyn expressed reservations about the White House's approach to filling the Texas vacancy, citing concerns about the nominee's limited ties to the state.

Chairman Grassley has outlined an aggressive strategy for his committee, citing the potential for Democratic obstruction in the next Congress as justification. Democrats, however, argue that Grassley's expedited process violates established norms regarding hearing schedules and review periods for nominee applications. Sen. Durbin warned that such procedural shortcuts might become commonplace.

Once nominees clear the committee, Democrats still possess leverage to slow down proceedings on the Senate floor. The confirmation of appellate court nominees requires significant floor time, which could be a challenge given other legislative priorities, such as permitting reform. Sen. Thune has indicated a willingness to extend the Senate's work week to accommodate these votes.

John P. Collins, a professor at George Washington Law School, noted that while historical precedents exist for end-of-Congress agreements on nominations, the current situation is marked by heightened partisan engagement on judicial confirmations.