Dem
47
GOP
53
Even though he is vice president-elect, J.D. Vance is still a senator and will continue to be until he resigns. If Gov. Mike DeWine (R-OH) decides on a replacement to appoint to Vance's seat before Jan. 3, 2025, the new senator could be sworn in before then and he or she will have more seniority than the five new senators to be sworn in on Jan. 3. Presumably, if DeWine tells Vance he has picked a replacement, Vance will resign immediately. But until Vance resigns, he is still a senator.
Turns out, that matters. Majority Leader Chuck Schumer (D-NY) is racing to confirm as many judges as possible before Christmas, when the senators want to go home. The Democrats have 51 seats, but they often can't count on outgoing Sens. Joe Manchin (I-WV) and Krysten Sinema (I-AZ). If both of them vote against some nominee and so do all the Republicans, the nomination will fail 51-49.
However, this is where Vance and Sen. Marco Rubio (R-FL) play a role. They have been missing all Senate votes since Trump picked them for their new jobs. This means the Republicans can muster only 47 votes against nominees. If the Democrats can get 49, that's enough to confirm judges without Manchin and Sinema. On a vote to confirm, the Democrats do not need a majority of all the senators, only a majority of those present and voting, so it's possible to get the job done with less than 50 votes, if some Republicans are absent.
Republicans are furious at Vance (and Rubio) for not showing up for work and thus allowing Schumer to ram 10, 20, maybe 30 judges through. If they showed up and voted "no," those positions might remain open for Trump to fill. Sen. Thom Tillis (R-NC) went public with this issue. He said: "If we don't show up, we lose. I don't care what the reasons were. We have fewer than 15 scheduled legislative days. You have to show up. Period. End of story. There's nothing more important." Sen. John Kennedy (R-LA) expressed his frustration in a numerical way: "On a scale of 1 to 10, it is a 12."
On Tuesday, Embry Kidd was confirmed on a party-line vote for the U.S. Court of Appeals for the Eleventh Circuit. He is only the second Black man confirmed on any appellate court in the past 10 years. He is only 40, so he could easily serve for another 40+ years. Sen. John Fetterman (D-PA) was absent, so if all the Republicans had shown up, they could have blocked Kidd. Even with Fetterman present, it would have been a tie and Kamala Harris is in Hawaii right now and thus not available to break ties. She isn't any better than Vance and Rubio. Gov. Ron DeSantis (R-FL) was none too happy with Kidd's confirmation. He said the people of Alabama, Florida, and Georgia "will suffer the consequences" [of a Black judge on the 11th Circuit Court]. (V)