“If the last two years of the Obama administration were any indication, they’ll freeze them out,” Durbin said. “Hope springs eternal but I believe in history.”
Biden, who chaired the Judiciary Committee from 1987 to 1995, will be confronting an institution that’s only become more partisan since he left it, especially when it comes to the courts. Last month, Amy Coney Barrett became the first Supreme Court justice in 151 years not to receive a single vote from the minority party.
Even though most Republicans still won’t recognize that Biden is the president-elect, Sen. Chuck Grassley (R-Iowa), the top Republican on the Judiciary Committee next year, said that he would “of course” consider Biden's judicial nominees. If Republicans keep the Senate, they'll be in the unusual position of vetting and pushing through the minority party's nominations. President George H.W. Bush was the last president to take power without his party in control of the Senate, though Republicans only held the Senate for a few months during the beginning of his son’s presidency.
Members of both parties acknowledge that with a divided government, Biden’s nominees will need to be a compromise, like everything else.
“If we keep the Senate, then it’ll be a negotiation,” said Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee and McConnell ally. “Perhaps [Biden] will welcome the fact that the most radical nominees will not be confirmed by a Republican majority. That we’ll actually have to negotiate and come up with something that’s agreeable to both sides.”
But negotiation could prove challenging, particularly given McConnell’s affinity for filling the courts with conservative judges and the hard line some Senate Republicans have already taken on judicial nominees, even with a Republican president.
“I imagine they’ll have a tough time just because I’m not going to vote for people who I think are, to use my words, ‘judicial imperialists,’” said Sen. Josh Hawley (R-Mo.), whose opposition helped sink Trump’s nominee to the 5th U.S. Circuit Court of Appeals. “But maybe he’ll surprise me if [Biden] is indeed the president, who knows, maybe he’ll send up nominees who are constitutionalists and textualists. I kind of doubt it.”