The Senate's GOP majority will proceed with confirmations in November and December no matter the election outcome, the Kentucky Republican said Friday in a radio interview. He vowed to approve President Donald Trump's pick to replace the newly confirmed U.S. Supreme Court justice and said he hopes to also replace the late First Circuit Judge Juan R. Torruella. There are also 33 trial-court nominees awaiting approval for district courts in New York, California, Florida and several other states.
"We're going to run through the tape," McConnell told radio host Hugh Hewitt. "We go through the end of the year, and so does the president. We're going to fill the Seventh Circuit, and I'm hoping we have time to fill the First Circuit as well. And we are, by the way, confirming a district judge as soon as we get back after the election. We're going to clean the plate, clean all the district judges off as well."
McConnell's plan breaks with an informal custom that confirmations slow down late in presidential election years, especially for the appeals courts. Senators of both parties have cited the tradition, including McConnell in June 2012 and Democrats in 2004 and 2008.
The last time the Senate approved a circuit judge in lame-duck session after a presidential election was 1980, according to the Congressional Research Service. The chamber hasn't confirmed a circuit-judge in the six months before Inauguration Day since 1992. The GOP majority didn't allow President Barack Obama any confirmations after July 2016, most notably blocking Supreme Court nominee Merrick Garland.
McConnell has previously emphasized that this Senate session continues until Jan. 3 and the president's first term extends through Jan. 20. On the issue of Supreme Court confirmations in presidential election years, he said precedent showed the Senate majority generally approves nominees from presidents of the same party but not presidents of the opposite party.
A McConnell spokesman on Friday pointed to past statements from McConnell and a senior Democrat noting that this custom is not a formal rule. A spokesman for the chamber's top Democrat, Minority Leader Chuck Schumer of New York, didn't respond to a request for comment.
The majority leader's plan follows his vow last year that "we're not going to leave a single vacancy behind by the end of next year."
Senate Republicans can easily confirm Trump's pick to fill Justice Barrett's seat on the Seventh Circuit, U.S. Attorney Thomas L. Kirsch II. There's not yet a nominee to succeed Judge Torruella, a Puerto Rico native who was the only Hispanic judge to serve on the Boston-based First Circuit, which covers the territory of Puerto Rico.
Another 33 nominees await confirmation for the nation's 55 vacancies on district courts. Twelve only need a final confirmation vote on the Senate floor, including two each for California, Florida, Mississippi and Ohio. A few other recent picks for Republican states could quickly get a confirmation hearing and a Judiciary Committee.
However, other picks for Democratic states are unlikely to advance as senators block consideration of nine Trump nominees for California, five for New York and two for New Mexico.
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McConnell has made confirming Trump's largely conservative appointees the cornerstone of his legacy, reshaping the federal judiciary and likely changing the selection process permanently.
"I'm proud of what we've done," McConnell said Friday after his interviewer noted the historical rarity of getting three justices confirmed in four years. "I think it is of great consequence. I'll leave it to historians to decide who was the best majority leader."
Justice Barrett's elevation marked the 220th confirmation for Trump's judicial nominees. In one term, the president has named three justices, thanks to Senate Republicans holding open Justice Antonin Scalia's seat for nearly a year after his February 2016 death. His three most recent predecessors each got only two high court appointments across two terms.
If the Senate fills the vacancies on the First Circuit and the Seventh Circuit, that would give Trump his 55th appeals court appointment — exactly as many as Obama had over two terms. Trump's first term is likely to see about 175 district court confirmations, compared to 268 across Obama's eight years.
Law360 is tracking Trump's judicial nominations from the White House to the Senate to the federal bench.
--Editing by Jay Jackson Jr.
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