The Clearest Sign Yet That Trump Is Losing

Oh? A sudden urge to slow down appointing judges? Now why would that be?

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Image credit: Dave Whamond | Copyright 2021 Cagle Cartoons

A funny thing happens when Republicans sense that their ship is sinking: They suddenly need Democrats to “play fair” and be nice after years of Republican scorched earth politics. It’s the worst kind of hypocrisy and, like clockwork, here we are again:

Senate Judiciary Chair Dick Durbin is open to reinstating the blue slip on circuit court nominees next year, a proposal that would restore significant power to the minority party to block the White House’s judicial nominees.

Durbin (D-Ill.) said during a committee markup last week that he’d entertain conversations around restoring the blue slip — which home-state senators could use to effectively veto certain nominees — but only if it is bipartisan and agreed to before Election Day. Such a deal would be a high-stakes gamble for both sides, since neither would know who would benefit from the policy change or if future leaders would honor it.

Republicans nuked the blue slip back in 2017 so they could ram through dozens of young, unqualified Federalist Society scumbags and put them in lifetime appointments. It was an unprecedented assault on the rules and norms in order to corrupt the judicial branch. To the shock of no one, the press yawned and went about its day, much like it did when Mitch McConnell stole a Supreme Court seat in 2016 and then did it again four years later.

“But Ogre,” you say, “Republicans aren’t the ones suggesting we restore the blue slips!” Oh, that’s true. It’s Dick Durbin, the “Democrat” leading the Senate Judicial Committee who has turned a blind eye to years of rampant abuses by Republican judges. Any day now, he’s going to write another stern letter to Justice Samuel Alito telling him how disappointing his support for insurrection is and then do absolutely nothing about it.

Here’s the funny thing, though, Republicans sure do seem eager to go along with this plan:

South Carolina Sen. Lindsey Graham, the top Republican on the panel, said in a brief interview in the Capitol that he hopes “we can find a way forward to have a little bit of a check and balance on the committee.”

…

Graham wasn’t the only Republican who might be open to the idea. Even [Chuck] Grassley [R-Iowa] — who said he could be the committee’s chair again if Republicans retake the majority — said he might support such a move.

“I think it's a good thing to have the blue slip back to where it was,” he said.

That is not the sound of a Republican who is convinced his party is going to be in control of either the White House or the Senate next year. That is the sound of a Republican who think his party is going to be in the minority and the it would be nice if they had a way to block at least some of President Joe Biden’s judicial appointments for the next two years.

Here’s the thing, every year that Biden gets to appoint judges is another year that the Republican project of tainting the judiciary is severely damaged. It’s true that the GOP crammed 8 years’ worth of political hacks into Trump’s 4 years in office. But that doesn’t change certain realities.

There are two important things to keep in mind. The first is who appointed the judges currently serving:

Right now, Democratically (and democratically)¹ appointed judges are 55% of the judiciary.

The second to keep in mind is that there are still a bunch of vacancies:

Biden is going to fill those 44 vacancies. The 22 judges from Reagan and H.W. Bush will most likely retire or die soon and Biden will be able to fill those. That’s 66 vacancies. Clinton’s 30? Half? a little more? Now we’re up to 80 vacancies. Some percent of the 119 that W. Bush appointed will retire or leave for better paying jobs. It’s been 20 years. Not every lifetime appointment is, in fact, a lifetime appointment. I guarantee that a bunch of Trump appointees will leave because they’re corrupt and/or unqualified. Or they, too, find a better-paying gig. Not every judge can find billionaire sugar daddies like Clarence Thomas.

That means by the end of Biden’s second term, he will have appointed well over 250 judges, possibly closing in on 300. Combined with Obama’s appointees, that will leave Trump’s now less than 229 very much outnumbered. They’ll still be a cancer on the judiciary but a distinct minority. Thus seriously endangering the Republican project of using the courts to rule America by fiat.

One solution to this problem for the GOP is to win the White House or the Senate. Trump’s bid for the White House is not one I would bet on. The Senate might have been a lock but once again, the Republican base picked really bad candidates so the GOP is watching the Senate slip away. Boo. Hoo.

The other solution, more like a band-aid, is to gum up the works. Slow everything down as much as possible and hope to take back the Senate in 2026. After that, Republicans will just refuse to confirm a single judge. Again.

But first, they have to slow things down and, oh boy do Republicans want to slow things down:

Members of both sides of the Judiciary Committee have bemoaned the current circuit court nomination and confirmation process. Sen. Thom Tillis (R-N.C) was sharply critical of the committee advancing the nomination of Kevin Ritz to the Sixth Circuit over the objections of Republican Tennessee Sens. Marsha Blackburn and Bill Hagerty.

“We have politicized circuit court nominees,” he said.

Politicized? Yeah. You’re the assholes who politicized it. First by filibustering every nominee, then by stealing a Supreme Court seat, then by eliminating blue slips. Now that Democrats have stopped screwing around and they’re stuffing the courts just as quickly, Republicans are very upset about how “politicized” the whole process has become. Why can’t we just go back to the way things were? Left unsaid is the part about how Republicans can abuse “how the way things were” to block Democrats at every turn.

There’s a lot to be said for re-establishing norms and traditions, especially in a time when Republicans are constantly seeking to destroy them all. But this is not a norm we should embrace. Not now and possibly not ever. Democrats would honor it and allow Republicans to block appointments. Republicans, though? There is zero chance they would honor it. Ten seconds after a Republican president and Senate majority were sworn in, they would do away with it “for reasons” and get right back to flooding the judiciary with extremists.

It’s really important to remember that Republicans understand their ability to win elections legitimately is all but gone. Even if they cheat their way back into power, there’s no guarantee they would be able to keep it without eliminating elections altogether, a move that would set off a civil war. They need to control the judiciary as a fallback plan. It’s all they have left short of pure violence. Plan A is rig the election. Plan B is rig the courts. There really isn’t a Plan C. It’s all over after that.

That’s why they’re suddenly very interested in restoring the blue slips they themselves eliminated.

In a few months, as it becomes really obvious that Trump is going to lose, look for Republicans to cry hot tears about how both parties should unite to put the judicial filibuster back in place “for the good of the country.” That’s when you’ll know Republicans see the writing on the wall and that writing does not say “President Trump.”

There are 168 days until the 2024 election. Vote blue like your life depends on it.

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1. Let’s be honest, neither Bush nor Trump were legitimate presidents, meaning all of their judicial appointments are tainted.