Senator-elect Mark Kelly will be sworn in on Wednesday at noon when he becomes Sen. Mark Kelly, dropping Sen. Mitch McConnell’s majority by one vote, 52-48. That’s one vote closer to President-elect Joe Biden being able to repair the damage done to the federal judiciary by McConnell and Trump, and highlight how absolutely essential it is that Democrats win the two Senate seats in Georgia. Because without them, the McConnell blockade will be back.
The usual suspects among Republicans—Susan Collins, Lisa Murkowski, and Mitt Romney—say they’ll allow Biden’s Cabinet picks, but judicial nominees are a whole different ball game, being McConnell’s single focus. Sen. Dick Durbin, the Democrat who is vying for the top slot on the Judiciary Committee after Sen. Dianne Feinstein (finally) ceded that spot, is not optimistic, telling Politico that Biden will have “very little” impact on the judiciary if Democrats don’t get the Senate. “If the last two years of the Obama administration were any indication, they’ll freeze them out,” Durbin said. “Hope springs eternal but I believe in history.” That’s a welcome embrace of reality, at least.
Not all Democrats are there yet. Witness Sen. Chris Coons of Delaware, close friend of Biden, who remains doggedly obtuse about the nature of Republicans, and particularly McConnell. “Joe Biden ran for president on bringing us together and making the Congress work again as one of his core priorities,” Coons told Politico. “If anyone can sit down and work out with [McConnell] … a way to come to an agreement that we will move nominees, it’s President-elect Biden. I have lived through years and years of McConnell’s obstruction. I know this will be a challenging task.”
As long as McConnell has a core of would-be 2024 hopefuls—and he does—he’s not going to be bending, even if he wanted to. And two of the really abhorrent contenders are on the Judiciary Committee: Ted Cruz and Josh Hawley. “I imagine they’ll have a tough time just because I’m not going to vote for people who I think are, to use my words, ‘judicial imperialists,'” Hawley told Politico, pretending like there was any kind of principle behind his far-right extremism. There is not. As his next sentence demonstrates. “But maybe he’ll surprise me if [Biden] is indeed the president, who knows, maybe he’ll send up nominees who are constitutionalists and textualists. I kind of doubt it.” Biden is the president-elect. Trump lost. So that’s where the core of McConnell’s GOP is right now.
There are just 59 vacancies in the judiciary right now because of McConnell’s three-year conveyer belt of confirmations. He’s got 36 nominees in the pipeline now and wants to jam them all through in the lame duck. Even with the two Georgia seats potentially flipping, Biden is not going to be able to reform the courts, at least not in his first two years. But those two years—before the next midterms and another defensive year for Republicans in the Senate—could bring another Supreme Court nominee and any number of vacancies that could open through retirements. Which means Biden needs the Senate. Period.