Dems face new dilemma on Trump judges: Fight or flight?
Senate Democrats are wrestling over how hard to fight another batch of GOP judicial picks — a decision that could rob their vulnerable incumbents of valuable campaigning time.
The latest judicial conundrum for Democrats comes days after the brutal Brett Kavanaugh battle ended and weeks before midterm elections as five of their members run for their political lives in states President Donald Trump carried by double digits. As Majority Leader Mitch McConnell tees up another package of judicial nominees, the minority must decide how long it wants to drag out the next clash.
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By calling up the judicial nominations now, McConnell will force Democrats to swallow more confirmations before their imperiled incumbents can leave Washington 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.
So they’re settling for a middle ground, with few committing to a full-on fight.
“After the whole Kavanaugh experience, I am focused like a laser beam — and I hope all of the women and others who came forward to share their accounts with us, that they’re focused like a laser beam — on the elections,” Sen. Mazie Hirono (D-Hawaii), among Kavanaugh’s most pugnacious critics on the Judiciary Committee, said in an interview.
Hirono said she hasn’t yet talked with Minority Leader Chuck Schumer (D-N.Y.) about strategy for a judicial confirmations fight that’s poised to keep the chamber in session well into next week. But another Democratic senator said that “I think we will” take a deal on judges. “I think probably next week.”
The Senate currently has 42 judicial nominees in the queue for floor votes, with nine more slated for Thursday consideration by the Judiciary panel. While it’s unclear how many of those picks McConnell plans to seek a pre-election deal on with Schumer, the Kentucky Republican has underscored that he intends to follow his victory on Kavanaugh with more judicial confirmations before the midterms.
Democratic senators can use procedural gambits to drag out that judicial confirmation process, a signal to their base that they’ll keep fighting hard post-Kavanaugh. But even prominent liberals are reluctant to say how much resistance they’ll put up without knowing which nominees McConnell is prioritizing. They also understand how badly their colleagues up for reelection want to leave Washington to campaign.
“Obviously, we’d like to have people have a chance to talk to their voters but without knowing what the package is, it’s impossible to judge,” said Rhode Island Sen. Sheldon Whitehouse, another Judiciary Democrat.
“It’s like anything: It depends on what the terms of the deal are,” said Massachusetts Sen. Elizabeth Warren, who added that she’s not seen any offer. “It’s a chance for everyone to be back in their home states to talk to their constituents. People want to talk about their records, people want to be able to prepare for their debates.”
South Dakota Sen. John Thune, the No. 3 GOP leader, said Republicans will prioritize the three Trump-tapped appeals court nominees ready for floor action and that McConnell will take into account how many judges he could confirm if he keeps the Senate in session.
“It’s just a question for the Democrats: When are they willing to come to the table?” he said. “My guess is it will be a package the leaders negotiate and probably will include a certain number of circuit court judges and executive branch noms.”
Privately, some Democrats argue that because McConnell will be able to push through more nominees during the post-election lame-duck session, it makes little sense to prod their members to stay in session and fight a short-term, losing battle now. Or, as Warren put it, “Holding senators in Washington for days in order to do one 15-minute vote doesn’t make much sense.”
That doesn’t mean Democrats are ready to give in on judges as soon as this week. Minority Whip Dick Durbin (D-Ill.), who also serves on the Judiciary panel, said the caucus has “some pretty strong feelings about the whole issue now,” but noted that he “wouldn’t presume to” speak for what Schumer might accept.
In fact, breaking for the midterms now stands to benefit the two Republicans who are facing serious reelection challengers: Sens. Dean Heller of Nevada and Ted Cruz of Texas. And activists on the left are ready to hammer Schumer’s caucus if it throws in the towel on judicial nominees.
“If the Senate is serious about the federal judiciary, each senator must reject attempts to confirm these lifetime nominees without adequate time and debate,” Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, said in a statement.
“We expect senators to work, to fight for us and to stand up for what is right. Not catch the first flight out of D.C. so they can advance their personal political standing,” said Shaunna Thomas, executive director of the liberal group UltraViolet.
For red-state Democrats, however, whether to stay in Washington or head back to campaign is a personal choice with huge consequences — given that their fate in the midterms will make the difference between a bigger GOP majority and a potential Senate takeover by their party.
“I need to be home, that’s what I’m going to tell you. I’m going to evaluate what these votes are,” said Sen. Heidi Heitkamp (D-N.D.), perhaps the caucus’ most vulnerable incumbent.
Heitkamp was in Washington on Wednesday supporting a water infrastructure measure crucial to her state that she described as “important enough to come back” for.
Sen. Jon Tester (D-Mont.) sounded a similar note: “It would be good to get back to campaigning and get back to the state,” he said, while making clear that the choice is up to McConnell and Schumer.
The Senate’s unusually rigorous workload since the summer has made it more difficult for Democrats like Heitkamp and Tester, who can’t fly direct to their home states, to get their campaign machines fully up and running. Tester is holding a narrow lead over his GOP challenger, Matt Rosendale, while recent polls have shown Heitkamp far behind Rep. Kevin Cramer (R-N.D.) in their matchup. Both of those Democrats opposed Kavanaugh.
The one vulnerable Democrat who supported Kavanaugh, West Virginia Sen. Joe Manchin, sought to stay sanguine about the prospect of another week in pre-election session. But he threw an uncharacteristic jab at McConnell for a “horrific” move to keep senators operating as “a one-legged stool” while House Republicans are back home campaigning.
“So I’ll live within the rules, and we’ll make the best of it, and I don’t think Mitch will benefit at all from doing what he’s doing,” added Manchin.
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