Washington — Having succeeded in reshaping the federal judiciary during his first term and the first two years of his second administration, President Trump and Republicans’ campaign to shift the courts to the right could be coming to an end with Democrats poised to take control of the Senate next year. During his first term, Trump managed to place more than 230 judges on the federal bench, including three Supreme Court justices, reshaping the judiciary for decades. So far during his second term, the Senate has confirmed 57 of the president’s chosen judicial nominees. In total, Trump’s nominees represent about a third of active federal judges. But Democrats are now poised to control at least 54 Senate seats, and as many as 56 depending on the outcome of races in Mississippi and Alaska, making it unlikely that Trump will fill many more vacancies on U.S. district and appeals courts, a distinguished fellow at the Ethics and Public Policy Center and former law clerk to the late Justice Antonin Scalia, told CBS News. There are currently 28 vacancies on the federal courts and another 15 seats that will open in the coming weeks and months. So far, the president has formally sent the Senate 16 candidates for those existing and future vacancies, although he may present more names for consideration before the current Congress finishes its work. Trump announced three more nominees for district courts in Texas and South Carolina on Truth Social on Tuesday. The GOP-led Senate Judiciary Committee is moving quickly to move forward with those selections before control of the upper chamber changes hands. He voted to advance four of the presidential nominees to the district court and held confirmation hearings for four other judicial nominees on Tuesday. The panel is expected to hold more confirmation hearings next week, a break from the committee’s practice of holding such proceedings every two weeks, according to a source familiar with the panel’s work. Republicans are violating “numerous long-standing standards in a desperate attempt to confirm more than 30 qualified loyalists for lifetime appointments before Democrats win the majority,” Sen. Dick Durbin, the top Democrat on the Judiciary Committee, said Tuesday. Durbin expressed concern about two of Trump’s recent picks to serve as federal judges in Texas: James Sullivan, who lost his bid for re-election to the Texas Supreme Court last week, and T. Elliot Gaiser, the chief justice of the Supreme Court. Department’s Office of Legal Counsel, whose only connection to Texas is a year-long internship for a judge on the U.S. Court of Appeals for the Fifth Circuit. Both are scheduled to appear before senators for confirmation hearings next week. “There are a lot of things we can still do, and I hope we use them. And one of them is not to rush nominees who haven’t been carefully vetted,” Durbin said. “I hope we don’t accept that as the standard in this committee.” But Sen. Chuck Grassley, an Iowa Republican who chairs the Judiciary Committee, rejected Durbin’s claim that he is departing from his typical practices. He argued that there are no committee rules about how quickly it can move to hold confirmation hearings or when those proceedings are held, and said the chairmen have discretion to set the panel’s timeline. “Historically, this committee has shortened deadlines when circumstances warrant,” he said. In anticipation of Democratic control of the upper house, Republicans are expected to make judicial candidates a focus of the outgoing term. “The priority will be to get the justices across the finish line,” said Senate Majority Leader John Thune. But seats on the federal bench that remain open at the end of the current Congress are likely to remain vacant for at least the next two years. “Over the last two years, we’ve seen Trump trying to pack our courts (district courts, circuit courts) with loyalists to him and not to the Constitution, and I think he’s going to try to continue to do that,” said Rachel Rossi, president of the Alliance for Justice, a progressive judicial advocacy group. “At this point, when Trump has clearly created this litmus test that there must be loyalty to him and not the Constitution, it’s hard to see how Democrats can support candidates in the future.” It is not unprecedented in the Senate for the party in control to block the nominations of a president from the opposing party. During the final two years of former President Barack Obama’s administration, when Republicans held the majority in the Senate, only 20 of his nominees to district and appeals courts were confirmed. Obama’s final judicial confirmation came six months before the end of his second term. Among the candidates who failed to win the vote of the GOP-led Senate was Merrick Garland, who was nominated to replace Scalia on the Supreme Court after his death in February 2016. “What we’ve seen is that the federal courts are packed with extremists and loyalists, and now Democrats have the power to stop the reshaping of our courts in a very dangerous direction,” Rossi said. “I think there’s increasing visibility about what judges mean and what these lifetime seats mean, and the hope is that Democrats will use their power and oppose any further reshaping of our judiciary.” Of the 43 current and future vacancies, Trump has yet to announce candidates for more than half of those seats. Many of them are in states that will be represented by two Democratic senators or one Republican and one Democratic senator next year. Democrats could work with the White House to find consensus on nominees to serve on district courts in their states, but it’s unclear whether there is a desire on both sides to do so. He is expected to head the panel next year, he said in a statement. “There needs to be accountability for years of Republican misbehavior and a complete reset of the nominating process in the next Congress.” The Democrats’ defeat of the Republicans in last week’s midterm elections also makes it unlikely that a Supreme Court justice appointed by a Republican president will resign in the final two years of Trump’s term, given that a successor would likely fail the Senate. The president had a significant impact on the country’s highest court, appointing three of the nine justices. Among them was Judge Amy Coney Barrett, who took over from Justice Ruth Bader Ginsburg after her death in September 2020, during Trump’s first term. Justices Clarence Thomas, 78, and Samuel Alito, 76, are the two oldest members of the high court, but Alito told The Wall Street Journal in August: “I’m here for another term.” Alito also told CBS News chief legal correspondent Jan Crawford last month that while he considered retiring earlier this year, he feels he can still make a contribution to the Supreme Court. Since none of the justices are expected to resign during the outgoing session, it could be several years before a Republican president and Senate are in place to confirm their potential successors to the Supreme Court, raising concerns among conservatives that a Democratic president and Senate could fill the seats of influential conservative justices. “Trump has managed to jeopardize his greatest achievement,” Whelan said. More from CBS News Go deeper with The Free Press in:
