McConnell Plans to Fill 2 Circuit Court Vacancies Regardless of Election Outcome

McConnell Plans to Fill 2 Circuit Court Vacancies Regardless of Election Outcome
Senate Majority Leader Mitch McConnell (R-Ky.) speaks during a debate with Democratic Senate nominee Amy McGrath, in Lexington, Ky., Oct. 12, 2020. (Michael Clubb/Pool/Getty Images)
Janita Kan

Senate majority leader Mitch McConnell (R-Ky.) said on Friday that he plans to fill two important vacancies in the circuit courts regardless of the election outcome.

McConnell made the comments during an interview on the Hugh Hewitt show, saying that the Republican-controlled Senate intends to fill the vacancies on the 7th Circuit left by Justice Amy Coney Barrett and the 1st Circuit left by the late Judge Juan R. Torruella, who died on Oct. 26.

“Well, we’re going to run through the tape. We go through the end of the year, and so does the President,” McConnell said. “We’re going to fill the 7th Circuit. And I’m hoping we have time to fill the 1st Circuit as well.”

He added that the Senate will also be confirming a district court judge right after the election.

“We’re going to clean the plate, clean all the district judges off as well,” he said.

Since taking office, the Senate has confirmed 220 federal judges nominated by Trump, including 53 appellate judges, and three Supreme Court justices. There are currently 55 U.S. district court vacancies and 33 nominees pending, according to the U.S. Courts website.

Barrett was sworn in as the 115th associate justice of the Supreme Court late Monday after she was confirmed by the Senate in a 52-48 vote. McConnell and Senate Republicans had arranged a tight schedule in order to ensure Barrett was confirmed before the presidential election.

The move to nominate and confirm Barrett before the election drew criticism from Senate Democrats, who argued that the winner of the election should select the nominee to succeed the late Justice Ruth Bader Ginsburg.

Democrats were also vigorously opposed to the nomination because they believe Barrett could imperil former President Barrack Obama’s signature health care law, the Affordable Care Act (ACA), which is being challenged in a lawsuit currently pending before the Supreme Court. The confirmation would put Barrett on the bench in time to hear oral arguments on Nov. 10.

McConnell defended his decision to confirm Barrett as quickly as possible, saying that it was “entirely consistent with history and tradition.”

“Look, if the shoe had been on the other foot, I’m pretty confident that they would have acted in the same way,” he said.

He also warned that he believes Democrats would try to pack the Supreme Court following Barrett’s confirmation.

“They’ve been talking about that all year. It didn’t just pop up when we ended up confirming Judge Barret. This Supreme Court packing issue has been around all year long,” he said.

The move to expand the number of justices, called “court-packing,” is a way Democrats could shift the ideological balance, or at least the ideological makeup, of the bench if they regain control of the Senate and White House in the next election.

Court packing has previously been attempted and at the time proved to be unpopular. In 1937, President Franklin D. Roosevelt, a Democrat, proposed legislation to expand the size of the Supreme Court to a maximum of 15 justices. Roosevelt’s motive was to shift the ideological balance of the court so that it would stop striking down his New Deal programs.
Barrett appointment to the nation’s highest court gives it a conservative majority for likely decades to come. After Justice Ruth Bader Ginsburg’s death, Democrats from both chambers threatened to expand the top court if Senate Republicans moved forward with filling that vacancy.

Several senators have proposed constitutional amendments to prevent Democrats from expanding the Supreme Court if Joe Biden wins the White House and the Democrats take a majority in the Senate.

Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
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