WASHINGTON — Less than two months remain in the Trump administration, and Senate Republicans are doing something not seen in a century — confirming judges and other nominees after their party lost the White House. That norm-breaking rush to get GOP-approved picks through could get tricky, though, if lawmakers continue missing time because of COVID-19.
With only one exception, post-election confirmations of judges nominated to lifetime appointments by a president whose party has lost the White House hasn't happened since the election of 1896 when William McKinley was elected and the Senate confirmed Grover Cleveland's picks.
So far in this lame-duck session, the Senate has confirmed six nominees to U.S. district courts and one to the Court of International Trade, starting on Nov. 10 and before leaving town on Nov. 18.
"It's unprecedented to confirm lame-duck presidents' nominees after the election," said Russell Wheeler, president of the Governance Institute and a visiting fellow at the Brookings Institution.
During previous presidential election years, senators have invoked the so-called Thurmond rule, an unwritten agreement named after the late Sen. Strom Thurmond, R-S.C., that calls for the chamber to stop approving circuit court nominations in the few months before Election Day.
But Senate Majority Leader Mitch McConnell is following through on a leave-no-vacancy-behind promise. He vowed, "We're going to run through the tape" in an October appearance on Hugh Hewitt's radio show. "We go through the end of the year, and so does the president," the Kentucky Republican said.
Before the Senate left town for the Thanksgiving holiday, McConnell teed up three more nominees for when senators return, including one tapped to serve at the U.S. district court level, one for a 15-year term on the Court of Federal Claims, and a member of the National Credit Union Administration Board.
On Monday, the chamber will vote to cut off debate on the nomination of Taylor B. McNeel to be a district judge for the Southern District of Mississippi.
"Whether or not the Senate was in the same party as the White House didn't make any difference," Wheeler said. "They just didn't confirm nominees."
Wheeler said the only exception to judicial confirmation after an incumbent or term-limited president's party was defeated was in 1980, when a bipartisan agreement was reached to confirm now-Supreme Court Justice Stephen G. Breyer to a seat on the U.S. Court of Appeals for the 1st Circuit. The confirmation vote was 80–10.