Senate Majority Leader Mitch McConnell, R-Ky., refused last year to consider President Barack Obama’s nominee for an appeals court seat that had been vacant for three years.
In January, though, Donald Trump became president and quickly nominated a different judge for the Cincinnati-based 6th U.S. Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio and Tennessee.
Sure enough, Wednesday, all 52 Republicans voted to advance the nomination of U.S. District Judge Amul Thapar to the 6th Circuit. All 46 Democrats and two independents did not. A final vote is expected Thursday.
Much like Obama’s nomination of Merrick Garland to the U.S. Supreme Court, McConnell refused to even allow a hearing or vote on Lisabeth Tabor Hughes for the 6th Circuit vacancy.
That wound up clearing the way for Trump to pick Thapar, a district court judge in Northern Kentucky who had been on the list of potential Supreme Court picks.
To be sure, Democrats helped create the situation they found themselves in Wednesday.
In 2013, out of frustration over Republican obstruction of Obama’s lower-court nominees and administrative appointments, they changed Senate rules to require only a simple majority to cut off debate instead of 60 votes. Under the old rules, Democrats could have blocked Thapar’s nomination altogether.
Democrats said their vote Thursday was based on Thapar’s merits, not out of retribution for what McConnell had done to Hughes, the deputy chief justice of the Kentucky Supreme Court. Thapar was criticized by many Democrats for his affiliation with the conservative Federalist Society.
McConnell introduced Thapar to the Senate Judiciary Committee at his confirmation hearing in April.
“Since joining the federal judiciary in 2007,” McConnell said, “Amul has established a reputation as a keen legal mind who applies the law fairly to all who enter his courtroom.”
Thapar is the first U.S. district judge of South Asian descent, and he’s poised to be the second to sit on a U.S. circuit court.
Carl Tobias, a law professor at the University of Richmond, said it could be that Democrats were reacting to Thapar’s answers in his confirmation hearing instead of seeking payback.
“Most Democrats who attended were not very satisfied with his answers to the questions they raised,” Tobias said.
Still, Tobias noted that this is the first among many judicial vacancies that Trump will get to fill and McConnell’s Senate majority will get to confirm. According to the Administrative Office of the U.S. Courts, there are 129 federal judicial vacancies, with only eight nominations pending. There are a total of 890 federal judgeships.
Relationships between Democrats and Republicans are “very bad” on the judicial front, Tobias said.
“This is just the beginning,” he said. “They need to figure it out and stop the paybacks.”