If two Democratic Senate candidates in Georgia win runoff elections in January, the Democrats would have a majority with the assistance of Vice President-elect Kamala Harris.
Otherwise, the Republicans will continue to have the final say on judicial seats and could block any candidates deemed to be liberal, at least until the 2022 election. Twenty-two Republican and 12 Democratic Senate seats will be up for election that year. Typically, the party that does not control the White House makes gains.
"Everything about the judicial nomination process has become politicized in an unprecedented way," Chemerinsky said. "And it is hard to think about any of these questions except from the political perspective."
A 9th Circuit judge noted in an interview that "Clinton judges across the country have just been holding on" for a Democratic presidency. They should make taking senior status contingent on Senate confirmation of a successor if Sen. Mitch McConnell (R-Ky.) remains majority leader, the jurist advised.
The judge expressed concern about McConnell "in light of his treatment of Merrick Garland's nomination, which I thought was a travesty."
In March 2016, then-President Obama nominated Garland to fill the seat left empty by the death of Justice Antonin Scalia. Garland, considered a moderate, was chief judge of the U.S. Court of Appeals for the D.C. Circuit. The Republican majority on the Senate Judiciary Committee refused to give Garland a hearing, saying the opening should be filled by the president selected by voters the following November. Trump won and filled the vacancy with Justice Neil M. Gorsuch.
Along with blocking Garland, the GOP-led Senate also prevented Obama from filling many judicial vacancies. More than 100 positions remained unfilled when President Trump took office. The confirmation numbers under Obama fell substantially from previous years when different parties controlled the Senate and the White House.
"Both sides have been playing hardball since Obama came in," said University of Richmond law professor Carl Tobias, who monitors the confirmation process.
A third 9th Circuit judge said politics may determine the number of Clinton appointees who take semi-retirement. "The real issue is going to be the Senate," the judge said. If Republicans retain the majority, the jurist said, moderate nominees may get through but liberals won't.
"And it is entirely possible that they (Senate Republicans) may go back to the blocking tactics they applied previously with Obama," the judge said.