Democrats have grown increasingly angry over their party leadership’s failure, or refusal, to slow down Senate Majority Leader Mitch McConnell’s (R-KY) dramatic transformation of the nation’s courts.
Less than two years into the Trump presidency, the Kentucky Republican has shepherded 60 judges through the upper chamber and onto the federal bench, a remarkable accomplishment that will have sweeping implications for generations to come. But what has made it truly bitter for Democrats is the emerging belief that Senate Minority Leader Chuck Schumer (D-N.Y.) has not done everything in his power to halt or slow down the process.
Frustrations boiled over this week after Schumer and McConnell struck a deal to fast-track the confirmation of seven nominees, with a side agreement to consider eight more next week. Party operatives, including former high-ranking Senate officials (one of whom worked for Schumer), were left befuddled over what they viewed as the New York Democrat’s acquiescence.
“Democrats need to start to care about judges as much as Mitch McConnell does and play for keeps, which means not being willfully blind to ideological nominees from this president,” said Brian Fallon, the executive director of Demand Justice, a progressive judicial advocacy group, and a former top Schumer aide.
Fallon’s frustrations are privately shared by some progressives in the Senate Democratic caucus, who have been grumbling over Schumer’s larger approach to Trump’s judicial nominees, many of whom are young enough that they will be serving on the federal bench for decades to come. Those internal divisions among Democrats have not gone unnoticed by Republicans, who continue to take victory laps and are quick to note that elections do, in fact, have consequences.
“What we’re seeing now,” said one senior Senate GOP aide, “is a bit of resistance meets reality. Elected Democrats have realized that in their urge to delay everything, even those nominees who are objectively qualified, they’ve prevented themselves from scoring meaningful legislative victories to tout back home. They also seem to have realized that Mitch McConnell won’t be beat, and his long-game is paying off.”
Publicly, Schumer has taken his lumps in stride, enduring the criticism—but not pushing back strongly on it—as he gears up for the higher-profile fight over Trump’s Supreme Court nominee, Brett Kavanaugh. Privately, his allies argue that the critics are being unfair.
Most, if not all, of the prospective federal judges would have been confirmed anyway, regardless of when the votes would be held, they note. “The end result is the same,” Sen Chris Coons (D-DE) told MSNBC on Wednesday night. And at least some of the judges—though by no means all—were either relatively uncontroversial or had the support of a Democratic senator.
Schumer’s Democratic critics say, on that front, he is being snookered by McConnell, who is throwing Schumer a bone on an individual nominee or two in order to win his support for a larger package of Trump picks.
But the minority leader’s allies insist that he’s taking numerous factors into consideration before agreeing to fast-track some of these votes. Among those factors are the electoral needs and scheduling conflicts of his members.
According to a senior Senate Democratic aide, several senators were pushing to travel to Arizona on Wednesday and Thursday for John McCain’s funeral services before returning to Washington on Friday, when the late Arizona senator will lie in state in the U.S. Capitol rotunda. The aide also stressed that some moderate Senate Democrats in tough re-election battles had been pushing to return home to campaign.
“These largely non-controversial nominees were going to be confirmed one way or another,” the aide said. “They could be confirmed while Democrats were in Washington, or back home trying to win back the majority for a few days before returning for McCain services.”
Several senators were, indeed, back in their home states on Wednesday. But the office of one of those vulnerable Democrats—Sen. Joe Manchin (D-W.V.)—told The Daily Beast that Manchin had not asked Schumer to cut a deal on judges.
Adam Jentleson, a former deputy chief of staff for Senate Majority Leader Harry Reid (D-NV), was among those expressing displeasure with how Schumer handled the agreement with McConnell. Jentleson said Senate Democratic leaders should have deployed members strategically in order to draw out the confirmation processes. In particular, he outlined a proposal in which Democratic senators who lived near the nation’s capital would remain in Washington—while others went home to campaign for re-election—in order to make strategic objections to McConnell’s attempts to move judges quickly through the chamber.
These objections would only stall confirmations temporarily, Jentleson conceded. But they would force Republicans to produce 50 votes on each nominee, resulting in the inverse scenario: vulnerable Republicans would be stuck in Washington voting while vulnerable Democrats would be campaigning back home.
“The question is, are we dealing with a caucus where leadership is taking an aggressive stance to apply maximum pressure on McConnell over judicial nominations or not?” Jentleson said. “And the answer, clearly, is they’re not.”
For Schumer, the anger within his ranks comes at a particularly difficult political moment. The Senate is set to begin considering Kavanaugh’s nomination after Labor Day, and at least a few of Schumer’s more conservative members have hinted that they might vote to confirm him. Already, progressive judicial activists are resurfacing old quotes in which Schumer expressed regret that Democrats didn’t fight past Supreme Court nominees more aggressively.
Back home, constituents have demanded that the minority leader unite his caucus in opposition.
“I don’t really know if Schumer is doing the best he can,” Claire Fontaine, 65, told The Daily Beast at a recent Brooklyn town hall held by Schumer’s fellow New York Democrat, Sen. Kirsten Gillibrand. “I’ve never felt like I’ve had to work so hard to get a message across. I don’t think he’s really tough enough on his caucus. I think he should whip the vote. There are certain things that you really have to say ‘no’ on and I think Kavanaugh is one of them.”
Asked if Schumer is the right person at the moment to be the Senate Democratic leader, Fontaine said: “I don’t think he’s really tough enough.”
—Gideon Resnick contributed reporting.