This Is the Last Chance to Confirm Judges Who Believe in Originalist Interpretation of the Constitution

“Do not leave any seat empty.” That was the slogan of Senator Mitch McConnell on the eve of the 2020-concluding congressional session, and it is a slogan that Senate Republicans should embrace in the coming two months. Following the party’s disastrous performance in the midterm elections, this will be the longest-available opportunity in recent memory to secure constitutionalist judges who adhere to originalist interpretation of the Constitution. Previous sessions of Congress that ended in December offer important lessons to be applied today.

In 2020, recognizing that President Joe Biden would select judicial nominees fundamentally different from those favored by Republicans, then-Majority Leader McConnell pressed forward with the Senate’s agenda and successfully confirmed 14 judges to the Article III federal courts. As is the case today, Republicans held 53 seats, and their leadership worked to ensure member attendance and voting. However, the majority will shrink to 52 seats on December 15, with the expiration of the term of Republican Senator John Husted of Ohio.

It is also important to note that control of the Senate in January 2021 was not then settled, due to two runoff elections in Georgia, which reduced Democrats’ incentives to intensify their opposition.

Majority Leader Chuck Schumer learned this lesson four years later, when he successfully confirmed 22 judges during the 2024-concluding congressional session. However, he failed to pass the confirmation of four appellate court nominees. From the outset, Republicans demonstrated a willingness to use obstructionist tactics to block his progress at every stage, forcing Democrats to pay a procedural price for their judicial appointments. Unlike in 2020, Republicans knew they would control the chamber in January. Rather than engaging in a six-week attritional parliamentary war and relying on the probabilities of member attendance and absence, Schumer chose to strike a deal with Minority Leader McConnell, under which appellate court nominees unlikely to secure a majority would not be brought to the floor, in exchange for McConnell refraining from obstructing the confirmation of district court judges.

The 2018-concluding congressional session proceeded quite differently. The Republican majority was 51 to 49, and 13 appellate court nominees awaited confirmation. Yet the Senate confirmed only one, because Republican Senator Jeff Flake of Arizona refused to support the other nominees unless McConnell introduced legislation protecting special counsel Robert Mueller from dismissal. The Majority Leader rejected this, but Republicans later managed to confirm all the appellate nominees during the 116th Congress, when their majority increased to 53 seats.

Republican senators should draw lessons from these experiences during the current session. As control shifts to the Democrats, they must anticipate that Schumer will employ every available means to obstruct their judicial agenda. This necessitates their attendance and affirmative votes to complete the backlog of appointments. Majority Leader John Thune will not succeed unless his caucus members attend and vote.

Unlike in 2018, existing judicial vacancies will not be filled during the next session; at best, they will remain unfilled. Therefore, there should be resistance to the temptation to repeat the Flake maneuver. Flake took a position that was principled but ultimately ineffective, as he never secured the confirmation of the Mueller legislation. Borrowing McConnell’s phrasing, senators must decide whether they want to make a statement or make a difference. Flake ended up merely making a statement. Any similar statements Republicans make today against President Trump at the expense of judicial appointments will lead to the same outcome. In contrast, confirming judges who adhere to originalist interpretation of the Constitution will make a real difference.

Confirming the currently nominated candidates for the Fifth and Eighth Circuits would strengthen two of the country’s most originalist appellate courts in history and ensure that this promising approach continues for many years to come. The district court nominees include bright young members of the Federalist Society, who are expected to serve for decades.

If Republican senators, feeling understandable anger after the midterm election results, wish to distance themselves from President Trump, confirming these judges is the best way to do so. A little-known fact is that the first Trump administration exerted significant pressure on Republican leadership in late 2020 not to confirm such a large number of judges. The administration, due to its “political” stance on the presidential election results, may have wanted to prioritize appointments to executive branch positions. However, McConnell refused, preferring lifetime judicial appointments over executive posts that last only a few weeks. The White House even went so far as to withdraw the nomination of an executive branch official linked to McConnell’s home state of Kentucky, in a failed attempt to force him to change course.

Republican senators can make a difference and send a clear message by putting the Constitution first and confirming nominees who believe in its originalist interpretation, before it is too late. Minor disagreements or narrow interests with Trump may earn their proponents positive headlines today, but they will be forgotten within a week. In contrast, the impact of a judicial appointment lasts a lifetime.