Judges in a Divided Washington, and the Lame-Duck Window That Closes January 3

For most of American history, the most powerful sentence about the federal courts was not written by a judge. It was written by a Senate: "The nomination is confirmed." A President can pick whomever he likes. Without a majority in the Senate, the pick goes nowhere. That fact has always mattered. After the elections of November 3, 2026, it matters in a new way for Republicans, because the voters gave Democrats the Senate for the Congress that begins on January 3, 2027, while Donald Trump remains President.

So let me do what a good host owes you after a hard night: not wail, not whistle past the graveyard, but explain the rules. What does a Senate majority actually control? What can a President do without one? What did the fights of 2016 and 2020 establish? And what does the lame-duck period, the stretch between the election and the first day of the new Congress, still allow? I'll give you the structure, not predictions. Nobody knows how the next two years will play out, and anyone who claims to is selling something.

What the Constitution gives the Senate

Start with the text. Article II, Section 2 says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges of the Supreme Court and other officers. Two keys, then: the President's key to nominate, and the Senate's key to consent. Neither can open the door alone.

Article III, Section 1 says federal judges hold their offices during good behavior, which in practice means for life unless impeached. The Constitution creates one Supreme Court and leaves its size, along with the number of lower-court judgeships, to Congress by statute. That is why the number of seats can change only by passing a law, which also needs the President's signature or a veto override. For why that matters, read FDR Tried to Pack the Supreme Court in 1937 and His Own Party Said No.

Notice what the text does not say. It does not say how many senators must consent, beyond the ordinary rule that the Senate acts by majority, and it does not require the Senate to hold a hearing, schedule a vote, or act at all. The Senate's duty is to give advice and consent when it chooses to. That silence is where all the fights live.

What a Senate majority controls

Think of a confirmation as an obstacle course with four gates, and the majority holds the keys to each.

1. The committee gavel. Nominations to the federal bench go first to the Senate Judiciary Committee. The chair, who belongs to the majority party, decides whether and when to hold a hearing and when to schedule the vote to send the nomination to the full Senate. The majority party also holds more seats on the committee, under the ratio negotiated when each Congress organizes. A nomination that never gets a hearing generally never moves.
2. The hearing and the record. The chair sets the date, controls the witness list in consultation with the ranking member, and can give a nominee a quick turn or a slow roll. The process is laid out in Every Step in Confirming a Federal Judge, from Vacancy to Oath.
3. Floor time. The Senate has 100 members and only so many hours. The majority leader, by long custom, has the first right of recognition, which means he or she controls what the Senate takes up and when. Floor time is the scarcest thing in Washington.
4. The threshold. Until 2013, a nomination needed 60 votes to end debate. In November 2013, Democrats then in the majority changed the Senate's precedent so that lower-court and executive nominations could be advanced by a simple majority. In April 2017, Republicans extended the same rule to Supreme Court nominations during the Gorsuch nomination. In 2019, the Senate cut the debate time after a cloture vote on district-court nominees to two hours. The result: the filibuster of nominations is gone for all judges, and a bare majority can confirm. See From 98 to 0 to Party Lines, a Timeline of Supreme Court Confirmations for how we got from unanimous votes to party lines.

Put that together and you see the real shape of the matter. The 60-vote wall that once forced a President to find a consensus candidate is gone. What remains is a 50-vote game, and the majority party plays it on its own field.

What a President can still do

A President in this position is not helpless, though his options are narrower.

• Nominate. He can send names to the Senate at any time. A President facing a Senate of the other party often has to weigh two goals: nominees who please his base, and nominees who can win a majority. History shows both kinds can be found. For example, in 1988 President Reagan's nominee Anthony Kennedy was confirmed 97 to 0 by a Senate controlled by Democrats, after an earlier nominee, Robert Bork, had been rejected, and in 1991 President George H.W. Bush's nominee Clarence Thomas was confirmed 52 to 48 by a Democratic Senate. A divided government does not make confirmation impossible. It makes persuasion necessary.
• Make recess appointments, in theory. Article II, Section 2 lets the President fill vacancies that "may happen during the Recess of the Senate." But in NLRB v. Noel Canning (2014) the Supreme Court held that a recess of less than about ten days is presumptively too short for the power to apply, and that the Senate decides for itself when it is in session. If the Senate holds brief pro forma sessions every few days, which it can do, the recess route is closed. In practice, it has been shut for years.
• Adjourn Congress. Article II, Section 3 lets the President adjourn the houses if they disagree about the time of adjournment. No President has ever used it. Do not count on it.
• Lean on the blue slip, or not. The "blue slip" is a Judiciary Committee custom, not a rule of the Constitution or the Senate, under which a nominee for a district court seat or a U.S. attorney's post generally does not move without a favorable sign-off from the senators of the nominee's home state. Chairs of both parties have treated the custom differently over the years, especially for appeals-court seats, because a circuit spans several states and no single state's senators own the seat. How a chair uses it is the chair's choice. Expect it to matter for district nominees in states represented by senators of the opposite party.

What 2016 and 2020 established

Now the precedents that both parties cite and neither fully escapes.

In February 2016, Justice Antonin Scalia died. President Obama nominated Judge Merrick Garland on March 16, 2016. The Senate, then under Republican control, led by Majority Leader Mitch McConnell and Judiciary Chairman Chuck Grassley, did not hold a hearing or a vote. The argument was that a vacancy arising in a presidential election year, with the President of one party and the Senate of the other, should be filled after the voters spoke. Garland's nomination lapsed at the end of that Congress.

In September 2020, Justice Ruth Bader Ginsburg died on September 18. President Trump announced Judge Amy Coney Barrett on September 26. The Republican-led Senate confirmed her on October 26, eight days before Election Day, by a vote of 52 to 48. This time the President and Senate were of the same party, and the Senate moved quickly.

Democrats called these two episodes inconsistent. Republicans answered that the difference was the difference between unified and divided government. Both claims have a certain logic, and you can argue the point over a long dinner. But here is the part that matters now. The principle Republicans cited in 2016 was that a Senate controlled by the party opposite the President need not rush to confirm a Supreme Court vacancy in the President's final year, or in any year. A new Senate majority can cite the same principle. I am not predicting that anyone will. I am saying the argument is available, because Republicans made it, and a conservative should say so out loud rather than pretend precedents only run one way.

The lame-duck window

Now to the clock. The 119th Congress does not end on Election Day. Under the 20th Amendment, the terms of senators and representatives end at noon on January 3, and the new Congress convenes at noon that day. Until then, the sitting Senate, with its Republican majority, keeps its full powers. That period is called the lame-duck session.

What does it allow? Everything the Senate can ordinarily do, within the limits of time.

1. The Judiciary Committee can still hold hearings and votes. The chair still holds the gavel until the Congress ends.
2. The majority leader can still schedule floor votes. Each nomination takes a cloture motion, an intervening day, a vote and then post-cloture debate. By the Senate's current precedents, that is up to two hours for a district-court nominee and up to thirty hours for a circuit or Supreme Court nominee. Floor time is finite, and the lame duck also carries other business, such as keeping the government funded. The Senate's published schedule at senate.gov shows what is actually planned.
3. At the end of the Congress, unfinished nominations go back to the White House. Under the Senate's rules, a nomination not confirmed or rejected before the Senate adjourns sine die, or takes a recess of more than thirty days, is returned to the President unless the Senate agrees by unanimous consent to hold it over. At the close of a Congress, that means the nominee must be renominated and restarted in the new Senate under the new majority. That is the sense in which the window "closes January 3." It is a procedural clock more than a legal wall.

The strongest objection, stated fairly

Democrats and a number of neutral observers will say: voters just changed the Senate. Confirming lifetime judges in the lame-duck weeks, after the voters chose a different majority, defies the spirit of the election. A party that lost the Senate should not use its last weeks to lock in judges for decades.

That is a serious argument, and I respect it. Here is my answer, in three parts. First, the Constitution sets the terms of members of Congress, and until January 3 the senators who hold the seats hold the full power. The voters chose a new Senate for a new Congress, not for this one. Second, lame-duck confirmations are nothing new, and both parties have used the weeks after an election to move nominees. Third, the norm cuts both ways, and the fair test is the one Republicans must apply to their own conduct: if you would object when the other side does it, don't. What matters most is whether the nominees can be defended on their merits, with a record and a temperament that a fair-minded senator of either party could accept.

What this means for Republicans going forward

Three practical points follow. The first is to treat the Senate calendar as the most important document in town. The second: a Republican President facing a Democratic Senate has always had to nominate people who can win votes across the aisle, and the Kennedy and Thomas confirmations show it can be done. The third, and the one folks forget, is that the courts are not only in Washington. State supreme courts and state judicial selection systems decide enormous numbers of cases that touch families directly, and the voters in your state have more say in those than they do over any federal court.

For the wider context, How a Handful of Law Students in 1982 Changed the Federal Courts tells how conservative lawyers built a pipeline of judicial talent the patient way, and What the Minority Party in Congress Can Still Do When It Doesn't Run the Floor lays out the tools Republicans keep in the Senate minority. To keep track of who sits on which committee, see the members pages.

The bottom line

• Nomination is the President's key. Consent is the Senate's key. The majority party controls the committee gavel, the floor schedule and, since 2013 and 2017, a simple-majority threshold for judges.
• Democrats won the Senate on November 3, 2026, and the new Congress starts January 3, 2027. Until noon that day, the current Senate keeps its full powers, and unfinished nominations go back to the White House when the Congress ends.
• Recess appointments are effectively closed by pro forma sessions and Noel Canning. The blue slip is a custom that each chair controls.
• Divided government has produced confirmations before: Kennedy in 1988 and Thomas in 1991. The lesson is to nominate people who can be defended on the merits.
• Hold your side to the standard you apply to the other. Watch the Senate's schedule, call your senators, and pay attention to your state courts as well as the federal ones.