Dem
47
GOP
53
When the founders wrote the Constitution, they envisioned judges carefully selected by the president for their competence and knowledge of the law, with the Senate as a check in case a turkey or two came down the chute. Needless to say, that is not how it works anymore. Judges are chosen largely for their ideological background, with the expectation that they will rule the way the president wants them to rule, most of the time.
Judges know this and frequently time their retirements so that they can be replaced by a president of their preferred party. We have already seen several judges who jumped the gun, and expected Kamala Harris to win, rescind their planned retirements. For this reason, the Senate is trying to ram through as many of Joe Biden's judicial nominees as it can before control passes to the Republicans on Jan. 3. The Republicans are squealing, but they do exactly the same thing when the shoe is on the other foot.
On Friday, Biden hit a milestone. His 235th judicial pick was confirmed by the Senate, beating the 234 judges confirmed during Trump v1.0. Each of these presidents has replaced about one-quarter of the entire federal judiciary. In his next term, Trump will probably be able to appoint another quarter, meaning by 2029, half of all federal judges will be Trump appointees. Congress has a bill to expand the overworked judiciary, but Democrats won't vote for it when a Republican is president and Republicans won't vote for it when a Democrat is president. One possible way out is to have the new vacancies be created starting in Feb. 2029, when neither party knows who will be president and which party will control the Senate.
During the past 4 years, the Democrats did something that was against their own interests, in hope that the Republicans would reciprocate when the time came. The Senate has a tradition—and it is only a tradition, not a rule—that when the president nominates a federal judge, the chairman of the Senate Judiciary Committee gives each of the senators from the state where the judge will serve a blue slip on which they give their opinion of the nominee and their view of whether the Senate should confirm that person. The senators can also put the blue slips in the mixed-color paper shredder and not return them, which is a de facto "No" vote. Thus, informally, the senators from the state where the judge will serve are given a soft veto on the nomination. The full Senate can override the soft veto, but that doesn't happen much.
Anyway, during Biden's four years, Senate Judiciary Committee Chairman Dick Durbin (D-IL) kept the blue-slip rule, allowing Republicans to veto Biden nominees in their states. This cost Biden some appointments. Reporters have now asked incoming Senate Judiciary Committee Chairman Chuck Grassley (R-IA) if he will keep the blue-slip practice, and he said: "Yes." This may put Grassley at odds with Donald Trump more than a few times when one or two Democratic senators kill a nomination. Grassley is 91 and is not up again until 2028, when he will be 95. There is a decent chance he will retire then, after serving in public office for 66 years, but even if he doesn't, he has won election to the Senate eight times in Iowa and is not afraid of any primary threats from Trump. Those Democrats who urged Durbin to toss the blue-slip practice in the waste bin, and were angry at him for not doing so, are now thanking their lucky stars he was so stubborn. Who knows, maybe in January Democrats will be thanking Sen. Joe Manchin (I-WV) for refusing to kill the filibuster. (V)