Senate Democrats have confirmed some of President Joe Biden’s picks for the federal bench this week in the face of President-elect Donald Trump’s calls for a total GOP blockade of judicial nominations – in part because several Republicans involved with the Trump transition process have been missing votes.
Conservative activists blasted Republicans’ failure to show up for the votes, prompting a since-deleted, defensive social media post Tuesday by Vice President-elect JD Vance, an Ohio Republican senator who was at Trump’s Florida resort during a significant Monday evening confirmation.
The Senate approved Embry Kidd for the 11th Circuit, an appeals court overseeing the southeast where GOP-appointees make up a narrow majority of the judges. The 49-45 vote was essentially party line, with independent Sen. Joe Manchin voting with Republicans against the nomination. Five Republicans – including Vance and Sen. Bill Hagerty of Tennessee, who was also at Mar-a-Lago on Monday as he is being considered for Trump’s Cabinet – were absent, as was Democratic Sen. John Fetterman.
Trump earlier this month had urged Senate Republicans not to allow any judicial confirmations in the final weeks of the Biden administration while the upper chamber was under Democratic control. Republicans have made the confirmation process more time-consuming for Democrats by slow-rolling procedural votes, but have not been able to block the nominees outright when members of their caucus weren’t there.
Carrie Severino – who leads the Judicial Crisis Network, which advocates for conservative judicial nominees – said in a social media post after Kidd’s confirmation said that it was “critical that Senate Republicans show up to make this more difficult and to try to block these radicals from being confirmed.”
Vance, in a post on X that he later deleted, called another critic, Grace Chong, who is CFO of Steve Bannon’s podcast organization, a “mouth breathing imbecile” after she brought attention to his absence. The tweet also revealed that Trump was planning to replace FBI Director Christopher Wray, though FBI directors have traditionally stayed on even when the White House changes party control to avoid the perception of partisan influence.
“When this 11th Circuit vote happened, I was meeting with President Trump to interview multiple positions for our government, including FBI Director,” Vance said, while arguing that Democrats would have still confirmed the nominee – even if all Republicans were there – by getting Fetterman to show up to the vote.
Vance’s office did not respond to CNN’s inquiry.
Since then, other judicial nominees have been able to clear pivotal votes because not enough Republicans were present to block them.
On Tuesday, with several GOP senators including Vance absent, the Senate approved two district court nominees who faced united Republican opposition.
One of those nominees, Sarah Russell, who was selected for Connecticut’s federal trial court, was confirmed with just 50 votes, with Manchin voting against her. Had the six absent Republicans been present and voted no, it’s likely the nomination would have failed.
Hours before the vote, Vice President Kamala Harris departed DC for a weeklong trip to Hawaii, depriving Democrats of their tiebreaker. Two of the missing Republicans, Sens. Hagerty and Ted Cruz of Texas, were with Trump to watch a SpaceX launch on Tuesday in Texas.
Neither Cruz’s nor Hagerty’s responded to CNN’s inquiries.
Several of the missing Republicans – which also included Sen. Marco Rubio, Trump’s pick for secretary of state – were back in the chamber Wednesday. But with Sen. Mike Braun of Indiana absent and Cruz also missing for some of the procedural votes, Democrats have been able to confirm two more nominees: Rebecca Pennell, for the US District Court in the Eastern District of Washington, and Amir Ali, for DC’s federal trial court.
(Manchin has typically, but not always, voted against any nominee that doesn’t have GOP support. He supported Ali, but independent Sen. Kyrsten Sinema voted against the DC district court nominee.)
Braun’s office did not respond to CNN’s inquiry. Montana GOP Sen. Steve Daines, meanwhile, who was missing from the Monday vote on Embry but has participated in votes since, has explained that his Monday arrival in DC was delayed by multiple flight issues.
Trump took to social media again on Wednesday to complain about the absences, writing “Republican Senators need to Show Up and Hold the Line — No more Judges confirmed before Inauguration Day!”
During the lame duck session after Trump’s first term, the Senate confirmed 14 of his judicial nominees, among them, US District Judge Aileen Cannon, who dismissed special counsel Jack Smith’s classified documents case against the former president.
The tightwire over attendance shows the high stakes with which every judgeship is viewed.
When Trump retakes the White House next year, he will inherit far fewer vacancies than he did at the beginning of his first term. Then, he started with more than 100 judicial vacancies, in large part because of GOP tactics when it controlled the upper chamber at the end of President Barack Obama’s administration. Even if no other Biden-appointed judge is confirmed, Trump will start his second term with a number of openings that is fewer than half of that previous number.
CNN’s Alyana Treene, Kristen Holmes, Betsy Klein and Devan Cole contributed to this report.
