Senate Republicans confirm Amy Coney Barrett’s appeals court replacement in norm-busting lame duck vote

Democrats admit 7th Circuit nominee is ‘qualified’ but have objected to lame duck judicial appointments

It was always Mitch McConnell’s intention to keep confirming Donald Trump’s federal judicial nominations in the lame-duck session, even if it took him where few Senate majority leaders have gone before.

“We’re going to run through the tape. We go through the end of the year, and so does the president,” Mr McConnell told conservative radio host Hugh Hewitt in October, four days before Election Day.

“We’re going to fill the Seventh Circuit. And I’m hoping we have time to fill the First Circuit as well.”

By the “Seventh Circuit,” Mr McConnell was referring to the appeals court seat left vacant after the Senate elevated Justice Amy Coney Barrett to the Supreme Court.

On Tuesday, Senate Republicans confirmed Ms Barrett’s replacement, US District Attorney Thomas Kirsch, 51-44, marking the culmination of Mr McConnell’s controversial move to trample long-standing norms against confirming a lame-duck president’s appeals court nominees.

Mr Kirsch’s confirmation may well have come in the nick of time for conservative court-watchers, with control of the Senate up for grabs on 5 January with a pair of runoff races in Georgia.

If Democrats Raphael Warnock and Jon Ossoff defeat GOP incumbent Senators Kelly Loeffler and David Perdue, their respective opponents, Democrats will control the chamber.

And with President-elect Joe Biden being sworn into the White House on 20 January, Democrats would hold the key to the judicial kingdom for at least the next two years, helping ideologically recalibrate a federal court system Mr Trump and Mr McConnell have stacked with young conservatives over the last four years.

Mr Trump has appointed more than one in every four Article III judges, the most of any president in history besides Jimmy Carter, whose administration coincided with a substantial expansion of the federal court system leaving him to fill a host of new vacancies.

Mr Kirsch, like Ms Barrett, is imminently qualified — on paper, at least — for the post for which he has been tapped.

The American Bar Association unanimously rated him “well qualified” for the 7th Circuit seat, citing his work as Northern Indiana’s federal district attorney since October 2017.

Even Democratic Senator Richard Durbin of Illinois, one of the most powerful voices on the Senate Judiciary panel, agreed Mr Kirsch, in a vacuum, deserves the seat.

"I know the man. He is a qualified person,” Mr Durbin said last week.

But we are not living in a political vacuum, Mr Durbin pointed out. Mr Trump has been voted out of office. Only twice since 1984 has the Senate Judiciary Committee continued processing a president’s judicial nominations in the lame-duck period: in 2004, after George W Bush had won re-election, and in 2012, after Barack Obama had won a second term.

“It is such an extraordinary process that is being followed that many of us are constrained to vote against [Mr Kirsch’s] nomination,” Mr Durbin concluded.

But despite Mr Durbin’s complaints that Mr Trump has “lost his mandate” to fill the pair of crucial appeals court vacancies, Mr McConnell and the outgoing president have the Constitutional prerogative to move forward until the end of their current terms.

On Tuesday, Mr McConnell acknowledged publicly for the first time that Mr Biden is the president-elect. Interspersed in those congratulations was praise for Mr Trump’s record-breaking number of appointments to the federal judiciary over the last four years.

“Perhaps most important of all, President Trump nominated — and this Senate confirmed — three outstanding Supreme Court Justices along with more than 220 more Article III federal judges,” Mr McConnell said in yet another rhetorical victory lap about his efforts to remake the judicial system.

“These are brilliant, young, constitutionalist men and women in lifetime appointments who will renew the judiciary for a generation. All because President Trump knows we need judges who respect the essential but limited job description the framers wrote for our third branch of government.”