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Mitch 'Nuclear Option' McConnell Poised to Turn Steady Stream of Trump's Right-Wing Judges Into a Flood

Critics warn that even if Democrats regain control of White House and Senate, the flood of judges could mean there will be no more vacancies to fill post-2020

Senate Majority Leader Mitch McConnell (R-Ky.)

Senate Majority Leader Mitch McConnell (R-Ky.) is reportedly planning to change the chamber's rules to make it easier to confirm right-wing judicial nominees to lifetime appointments. (Photo: Gage Skidmore/cc/flickr)

Senate Majority Leader Mitch McConnell (R-Ky.) is reportedly pursuing a "nuclear option" rule change to make it easier to push through a flood of President Donald Trump's right-wing judges.

Under the new rules, nominees for lifetime appointments on lower courts would only require a simple majority of votes rather than the current 67. Critics condemned the move as "hijacking" the federal judiciary and pointed out that even if Democrats regain control of the Senate and White House in the next election, they may not have any more spots to fill post-2020.

As noted by Politico, which first reported on McConnell's plan Wednesday, the "stream of [Trump] judges is about to become a torrent."

Trump currently has 128 District Court vacancies to fill, and each one can take multiple days under current rules if any senator demands a delay; if Republicans change the rules, Trump could conceivably fill most of those over the next 20 months.

"What you could witness under Senator McConnell's leadership is a situation where an incoming president has very, very few open seats to fill," added Leonard Leo, a conservative legal advocate who frequently advises Republicans on judicial nominations.

Responding to the report, Brian Fallon, executive director of the advocacy group Demand Justice, tweeted that Democrats "will need to add seats across the judiciary to restore any sense of balance and legitimacy."

Shifting federal courts to the right has been a long-term priority of the GOP embraced by the Trump presidency, and as the Senate Judiciary Committee has advanced appointees to the floor at alarming rates, critics have warned that Trump's nominees "are not normal."

A Data for Progress study published in January concluded that Trump "is delivering for conservative activists through his judicial appointments, installing reliably Republican judges where he can." The study, which was commissioned by Fallon's Demand Justice, also noted that "Trump's appointments stand out as being conservative, white, and male relative to his predecessors.'"

After the study came out, Fallon charged that "Democrats in the Senate have been too slow to recognize the crisis that is underway." Urging party leaders to fight back against Republican efforts to remake the federal courts, he said, "Democrats can't continue to treat this situation as business as usual."

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McConnell's plans to change Senate rules prodded some of the chamber's top Democrats to call attention to the long-term threats that Trump's right-wing judicial nominees pose to Americans' civil and human rights.

While Sen. Dianne Feinstein (D-Calif.), the Judiciary Committee's ranking member, accused Senate Republicans of "trying to find all kinds of ways to move things through as fast as they possibly can with the least scrutiny possible," Senate Minority Whip Dick Durbin (D-Ill.) specifically called out McConnell for the pending rule change, telling Politico that "what he's trying to do to the Senate is dramatic and historic."

Senate Minority Leader Chuck Schumer (D-N.Y.), meanwhile, suggested reinstating "blue slips"—which would allow Democrats to weigh in on home state Circuit Court candidates—in exchange for backing some Trump nominees. While noting that he had spoken to several GOP colleagues about the compromise, Schumer said, "They're eroding democracy, they're eroding bipartisanship and sooner or later, they'll regret it."

As Common Dreams reported in October, progressive activists have been furious with Schumer's handling of the situation, characterizing his compromises with McConnell over the appointments as nothing less than "pathetic."

The nuclear option means that Republicans can change the rules without the support of Senate Democrats. According to Politico, "Republicans believe they have the required 50 votes for the nuclear option but are hoping to achieve complete caucus unity, which might prove difficult. Sen. Roy Blunt (R-Mo.) could be seen trying to sway Sen. Susan Collins (R-Maine) on the Senate floor on Tuesday during a vote."

The report comes as senators are considering Trump appointee Chad Readler, who advanced toward a final vote for the 6th Circuit Court on Tuesday.

Advocacy groups continue to raise concerns about Readler's support for efforts to kill Affordable Care Act protections for people with pre-existing conditions alongside other parts of his record as a lawyer and former acting assistant attorney general for the Justice Department's Civil Division:

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