Should a lame-duck Congress confirm judges? Yes for us, no for you.

Story by Glenn Kessler. November 21, 2024.

  • Republican Opposition: Republican leader John Thune and President-elect Donald Trump are opposing the confirmation of Biden-appointed judges during the lame-duck session, despite having supported similar actions in 2020.
  • Lame-Duck Sessions: These sessions occur after an election but before the new Congress is seated. They often involve significant legislative actions, including judicial confirmations.
  • Judicial Confirmations: Democrats are pushing to confirm as many of Biden’s judicial nominees as possible before the new Congress begins, aiming to match or exceed Trump’s total number of confirmed judges.
  • Hypocrisy Highlighted: The article points out the inconsistency in Thune and Trump’s stance on judicial confirmations, labeling it as a flip-flop.

“If Sen. Schumer thought Senate Republicans would just roll over and allow him to quickly confirm multiple Biden-appointed judges to lifetime jobs in the final weeks of the Democrat majority, he thought wrong.”

— Republican leader John Thune (T-SD), in a statement to Fox News, Nov. 18, 2024

“I want to thank the majority leader for making judicial confirmations such a priority. And I look forward to confirming more outstanding judicial nominees this week.”

— Thune, in a statement on the Senate floor, Nov. 18, 2020

“The Democrats are trying to stack the Courts with Radical Left Judges on their way out the door. Republican Senators need to Show Up and Hold the Line — No more Judges confirmed before Inauguration Day!”

— President-elect Donald Trump, in a post on X, Nov. 20, 2024

What a difference four years makes. Exactly four years ago, Sen. John Thune was on the Senate floor, celebrating the fact that Senate Republicans, who held the majority, planned to confirm five district court judges, “bringing the total number of judges we’ve confirmed over the last four years to nearly 230.”

Meanwhile, Donald Trump, then president, regularly boasted that because Republicans kept confirming judges, he had appointed “almost 300 federal judges,” what he called “a record-setting number.” (It was 234 judges, and not a record, but that’s another matter.)

Now, the Democrats, not Republicans, have control of the chamber in a lame-duck session — and Thune and Trump have changed their tune.

The Facts

A lame-duck session refers to a period after the November election but before a new Congress is seated in January, meaning that votes are cast by lawmakers who have been defeated or are retiring. But there’s nothing unusual about a lame-duck session.

Sometimes consequential votes are taken. The Department of Homeland Security was created in a lame-duck session in 2002, as was the Occupational Safety and Health Administration in 1970. Bill Clinton was impeached during a lame-duck session in 1998 — and the “don’t ask, don’t tell” policy barring gays from serving opening in the military was repealed in 2010.

Note that none of those actions happened during presidential election years; instead, they took place in the middle of a presidential term. When the incumbent party loses the presidency, as happened in 2020, and this year, the lame-duck session is less likely to result in major legislative actions.

But the outgoing party — if it controls the Senate and the presidency — has an enormous incentive to confirm federal judges during the lame-duck. The president’s imprint on the judiciary can last for decades, depending on the age of the nominee.

After Trump lost the election in 2020, Senate Republicans confirmed 14 district and appeals court judges during the post-election period, according to the Federal Judicial Center. As Thune put it in his 2020 speech, “confirming good judges is one of our most important responsibilities as senators.”

An appeals court judge, Thomas Kirsch III, was even nominated for the appeals court after Trump lost on Nov. 16 — and then confirmed less than a month later, on Dec. 15. Ordinarily, judicial nominations, especially for a position on the powerful appeals courts, take months to receive a floor vote.

One district judge confirmed during the 2020 lame duck was Aileen M. Cannon — who this year dismissed the federal indictment of Trump concerning his retention of classified documents. She ruled that the prosecutor in the case was improperly appointed, using legal reasoning that surprised many experts.

But now, what was good for the goose is apparently not good for the gander.

Thune is fighting an effort by Senate Majority Leader Charles E. Schumer (D-New York) to win confirmation of as many of President Joe Biden’s judicial nominees as possible. When the week started, there were 18 nominees awaiting confirmation and 46 vacancies, according to the Judicial Conference. The Senate had approved 217 judges named by Biden, meaning he could match or exceed Trump’s total. As of Wednesday evening, Democrats have since approved four district court judges and one appeals court judge — and are vowing to keep working through the weekend to confirm more if Republicans, led by Thune, engage in parliamentary stalling tactics.

Thune’s office argued that Thune was not being inconsistent — but circumstances have changed.

“Senator Thune believes just as strongly today as he did in 2020 that confirming good judges is one of the Senate’s most important responsibilities. But as the rest of his 2020 speech makes clear, that means confirming not just any nominee but well-qualified judges who understand the proper role of a judge. As the text reflects, Senator Thune’s 2020 speech expresses his frustration with Democrats for opposing well-qualified nominees simply because they fear those nominees will not deliver the outcomes they desire. Unfortunately, the Biden nominees the Senate is considering this month don’t meet the standard of well-qualified nominees, which is why Senator Thune and Republicans are opposing them — backed by the clear mandate we received from voters, who rejected the Biden-Harris-Schumer agenda.” – an aide said in a statement. “

The aide noted that 11 of the judges approved in 2020 received bipartisan votes. For instance, Kirsch earned the votes of three Democrats (Joe Manchin III of West Virginia, Kyrsten Sinema of Arizona and Mark Kelly of Arizona), and Cannon won support from 11 Democrats. Manchin, who has since become an independent and did not run for reelection, has opposed some of the nominations brought to the floor this week. None of the nominations won Republican votes — though, of course Trump’s strong opposition to any confirmations would make it politically risky for any Republican to cross party lines.

A spokesman for Trump’s transition team did not respond to a request for comment.

The Pinocchio Test

There’s an old saying in Washington, the Miles’s Law: “Where you stand depends on where you sit.” It was coined in 1949 by Rufus E. Miles Jr., a mid-level bureaucrat in the Truman administration. But even he noted the concept was probably as old as Plato.

But that does not excuse hypocrisy. Each party has its own definition of a “well-qualified” judge. Thune and Trump were eager to confirm federal judges during the lame-duck session four years ago. Now, they protest when Democrats use the same playbook four years later. That’s a flip-flop worthy of an Upside-Down Pinocchio.

An Upside-Down Pinocchio