Monday, November 30, 2020

Judicial Nomination Strategies

Assuming that we end up with President Biden and an R majority senate, what strategy should R senators pursue with regard to Biden's judicial nominees?  There are several possibilities.

1. Maximum Resistance.  Don't confirm any Biden nominees.

2. One-for-One.  Confirm one conservative and one liberal for a pair of vacancies.

3. Status Quo.  Confirm liberals to replace liberals and conservatives to replace conservatives.

4. Tit-for-Tat.  Treat Biden nominees the way that D senators treated Trump nominees.  D senators who acted reasonably (IL, MI, CT) get their choices, those who didn't, don't.

5. Back to Normal.  Confirm most Biden nominees, rejecting a few who are too extreme.

Strategy 1 offers the biggest upside and the biggest downside, depending which party gets control of both the presidency and the senate first.  Strategy 2 would likely result in a net gain for conservatives, since more liberals are likely to retire under Biden than conservatives.  Strategies 2-5 at least offer the advantage of filling seats that could go to more leftist nominees if Ds take the senate.

Strategies 2 and 3 could turn into strategy 1 if Biden doesn't go along.  But they at least allow R senators to say they offered a compromise.  Obama did agree to a one-for-one deal in Georgia in 2014 when Ds still controlled the senate, so Biden might agree to something similar.

Personally, I'm leaning toward strategy 2 for appeals court nominees.

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