President Trump's drive to move the federal judiciary to the right faces a major obstacle when Democrats take control of the Senate next year. Republicans are preparing to prioritize judicial confirmations during the remaining weeks of the current Congress, while Democrats signal that future nominees will face greater resistance.
Trump secured more than 230 federal judicial appointments during his first term, including three Supreme Court justices. The Senate has confirmed another 57 judicial nominees during his second administration, and his appointees now account for roughly one-third of active federal judges. Ed Whelan, a distinguished senior fellow at the Ethics and Public Policy Center and former clerk to Justice Antonin Scalia, told CBS News he expects few, if any, additional confirmations under Democratic control.
Federal courts currently have 28 vacant seats, with another 15 expected to open in the weeks and months ahead. Trump has formally submitted 16 nominees for those current and anticipated openings. On Tuesday, he announced three additional district court choices for Texas and South Carolina. The Republican-led Senate Judiciary Committee advanced four district court candidates that day and held hearings for four other judicial nominees.
The committee is expected to schedule further hearings next week, departing from its usual practice of holding them every other week, according to a source familiar with its operations. Sen. Dick Durbin, the panel's senior Democrat, criticized the pace and urged colleagues against accelerating candidates who had not received sufficient scrutiny. Committee Chairman Chuck Grassley countered that no committee rules dictate the timing or frequency of hearings and that chairs have authority over scheduling.
Durbin specifically questioned two prospective Texas nominees: James Sullivan, who lost his Texas Supreme Court reelection campaign last week, and T. Elliot Gaiser, who leads the Justice Department's Office of Legal Counsel. Gaiser's only Texas connection is a yearlong clerkship with a federal appeals court judge. The committee received information from both men before Trump announced his intention to nominate them, according to the source. Their hearings are scheduled for next week.
Senate Majority Leader John Thune said Monday that confirming judges would be a priority during the lame-duck session. Vacancies left when Congress ends are likely to remain open for at least two years. A comparable slowdown occurred during President Barack Obama's final two years, when a Republican-controlled Senate confirmed only 20 district and appeals court nominees. Republicans also declined to vote on his nomination of Merrick Garland to the Supreme Court.
Trump has yet to announce candidates for more than half of the 43 current and forthcoming vacancies. Democrats and the White House could negotiate agreements on district court candidates, although neither side's willingness is clear. Sen. Sheldon Whitehouse, the Rhode Island Democrat expected to chair the Judiciary Committee next year, has called for accountability and a reset of the nominations process. Rachel Rossi, president of the progressive Alliance for Justice, urged Democrats to resist further changes to the judiciary.
The election outcome also makes retirement less likely for Republican-appointed Supreme Court justices during Trump's final two years, because a replacement would probably struggle to win confirmation. Clarence Thomas, 78, and Samuel Alito, 76, are the court's oldest members. Neither is expected to leave during the lame-duck session, raising conservative concerns that their eventual successors could be selected by a Democratic president and Senate.
