President Donald Trump would have loved to see Republicans keep their grip on the House of Representatives in Tuesday’s midterm elections. But the GOP’s successful defense of its Senate majority was a huge consolation prize.
A friendly House majority without Senate control is of little use to a president. But the Senate alone has great value: It approves or rejects judicial nominations, which have played a crucial role in sustaining Trump’s popularity with establishment conservatives and evangelical Christians. And it is where where a flurry of expected Trump’s Cabinet nominations will be considered in the coming months.
Story Continued Below
After Tuesday night’s electoral setback, the president and his team plan to stress his ability to install judges as he rallies support for the 2020 election, according to more than a half-dozen current and former Trump officials.
Speaking at the White House Tuesday night, press secretary Sarah Huckabee Sanders called the Democratic failure to win the Senate — which had generally been considered a long shot — a “huge victory” for Trump.
“If anything there will be more of an appetite for judges and more of a focus on it without the House anymore,” a White House official told POLITICO. “It will be one of the few affirmative things that could still be pushed.”
“If the Democrats had acquired a majority in the Senate, they could have blocked every person President Trump nominated for federal judgeships,” former House Speaker Newt Gingrich, a steadfast ally of the president, wrote in a Fox News op-ed last week, adding of judicial nominations: “This was the biggest achievement of Trump’s first two years, and now it is likely guaranteed to continue.”
A Republican Senate will also be critical for Trump if, as expected, he fires or accepts the resignation of up to a half dozen Cabinet officials in the next few months. Their proposed replacements will all require Senate confirmation.
“You now have the ability to push through many more of your nominees without some of the consternation on the Republican side,” said Marc Short, former White House director of legislative affairs, pointing to moderate members like Sen. Lisa Murkowski (R-Alaska), who voted against advancing Brett Kavanaugh to the Supreme Court last month.
Trump won’t automatically get his way on new Cabinet or judicial picks, however. Senate Democrats will deploy every delay tactic to draw out nominations and force Trump to pull candidates who meet the stiffest resistance. And in the House, newly empowered Democratic chairmen will bombard the White House with subpoenas and document requests, tying up a thinly staffed White House counsel’s office that has been central to ushering judicial picks through Congress to this point.
Some Trump officials conceded that keeping the Senate is cold comfort in the wake of the Democrats’ House takeover.
“If you lose a chamber, you lose a chamber,” said one current White House official. “I don’t think there’s a lot of sugar coating of it.”
Still, a Republican Senate also offers a useful talking point for Trump, who stuck his neck out for several prominent GOP Senate candidates, and who has often been more critical of House leaders than Senate ones.
“Rhetorically [Trump is] going to claim that adding seats in the Senate is a great moral victory and the American people saw that [House Speaker] Paul Ryan and the rest of the Republicans couldn’t get something done and punished them for it,” said one former White House official.
Keeping the Senate and losing the House still allows Trump to keep “adding to the judicial legacy that he is going to have,” while simultaneously creating “a foil” in the form of House Democrats, added former White House press secretary Sean Spicer.
Meanwhile, many Republicans expect the House to be consumed by partisan warfare, while the Senate will remain relatively effective.
“You’ll see [Trump] talk about the difference of getting things done in the Senate, and further obstruction in the House,” said a former White House official.
To capitalize on such differences, however, Trump will need to continue his record-setting appointment of judges who are ideologically aligned with his administration, and pre-approved by the Federalist Society. The conservative judicial group, under the leadership of Leonard Leo, has worked hand-in-hand with the White House to identify originalist judges and elevate them to lifetime appointments.
The group has already found remarkable success: the 15 judges confirmed by the Senate in mid-October brought Trump’s overall tally of judicial appointments to 84 so far in his presidency. Former President Barack Obama had confirmed 11 appellate court nominees and 30 circuit court judges by the same point in his second year in office. One caveat to Trump’s success is that a number of his appeals court nominees have added to courts that are already mostly conservative instead of shifting liberal courts to the right, a trend that the Wall Street Journal recently pointed out.
“Up until now, the White House has been concentrating very heavily on the appellate courts,” Arthur Hellman, a law professor at the University of Pittsburgh and expert on the federal judiciary, said in an interview.
With the Senate remaining under Republican control, Hellman said Trump is likely to “give more emphasis than they have been to filling district court seats,” particularly if his use of executive action becomes more prolific and he wants resulting legal challenges “to be heard by judges whom he appointed and would likely be sympathetic.”
It’s a strategy that could have a long-lasting effect.
“Executive orders don’t outlast the president, legislation can change, but these judgeships last a long time,” said Carrie Severino, the chief counsel and policy director of the conservative Judicial Crisis Network, adding that Trump’s higher-court appointments have placated “a lot of Never-Trumpers and conservatives who have had to admit, sometimes begrudgingly, that ‘Wow, this has been a home run.’”
“[Trump] intuitively understands that evangelicals and some other conservative groups that might not necessarily be attracted to his populist message have been extremely attracted [to], and understand what nominating conservative judges has meant, or will mean, to the country going forward, well past his presidency,” said another former White House official.
But even with an expanded Senate GOP majority, Trump is still bound to encounter obstacles as he works to embed conservatism in the judicial branch.
Senate Democrats can make it tough for Trump to pack the courts by continuing to reject GOP unanimous consent requests that allow nominees to move forward to the floor. Brian Fallon, the former protégé of Senate Minority Leader Chuck Schumer, who served as his communications director, recently criticized the New York Democrat for forging a deal with Senate Majority Leader Mitch McConnell to confirm more than a dozen district and appellate judges in exchange for the Senate recessing so that members could return home with more time to campaign for re-election, or to help Democratic candidates in other races.
But in the new Congress, Democrats expect Schumer, a student of Senate history and rules, to continue using McConnell’s playbook from when he was minority leader to make life hell for the majority, using every delay tactic available to minimize the number of judges sailing through. Schumer’s hope, according to those familiar with his thinking, is that McConnell and other Republican senators might become so frustrated that they’ll agree to his demands, including pulling certain judicial nominees whom Democrats find particularly objectionable due to their inexperience or far-right views.
“Chuck’s a skilled tactician, and he knows how politically salient judicial [nominations] have become,” said Alex Halpern Levy, former chief speechwriter to Schumer.
“He’s got one hand tied behind his back thanks to the foolhardy 2013 rules changes,” he added, referring to a decision to allow judges to pass through via majority vote. “But he’s not going to let McConnell steamroll him on confirmations.”
House Democrats are expected to cause trouble as well, especially for the White House counsel’s office, which has spearheaded judicial selections and vetting. Former White House counsel Don McGahn left his job in mid-October, with White House lawyer Emmet Flood taking over in the interim until Pat Cipollone likely comes on board full-time later this month. The remaining bare-bones staff is bracing for a barrage of document requests and congressional subpoenas.
“Time is finite and the amount of time that the White House counsel is going to have to spend answering subpoenas directly cut[s] into the amount of time that they can spend on nominations,” said a former White House official.