Biden's Judicial Impact In Limbo As Ga. Counts Runoff Votes

Law360 (January 6, 2021, 12:06 AM EST) -- Georgia's final Senate runoff election remained too close to call early Wednesday morning, leaving the Senate majority undecided as Republicans look to keep control of the upper chamber and constrain President-elect Joe Biden's agenda for legislation and nominations, including federal judges.

A voter in Atlanta casts his ballot in the Senate runoff race on Tuesday. (AP Photo/Brynn Anderson)

Democrats must win both runoffs to control half the Senate, with Vice President-elect Kamala Harris breaking ties and deciding the majority.

In the early hours of Wednesday morning, the Associated Press called the first race for Democratic challenger Raphael Warnock against Republican incumbent Kelly Loeffler. The second race between Republican incumbent David Perdue and Democratic challenger Jon Ossoff has yet to be called, though AP vote totals showed Ossoff taking a narrow lead in the early hours of the morning.

As of 5:00 a.m. Wednesday, the Georgia Secretary of State's Office was reporting a lead of 50.41% for Warnock, with just under 99% of the vote counted in both races. The secretary of state's count showed Perdue with 50.02% of the vote in that race — ahead by less than 1,500 votes.

Warnock claimed victory in a video address posted on Twitter, speaking of his mother, "who as a teenager ... used to pick somebody else's cotton."

"But the other day, because this is America, the 82-year-old hands that used to pick somebody else's cotton went to the polls and picked her youngest son to be a United States senator," Warnock said. "Tonight we proved that with hope, hard work and the people by our side, anything is possible."

Georgia Secretary of State Brad Raffensperger said shortly before midnight in a live CNN interview that an estimated 4.5 million to 4.6 million ballots had been cast in the runoff elections. He said up to 17,000 overseas ballots, mostly from military personnel, could also be received by the 5 p.m. Friday deadline.

It could take days to know the winners: Narrow margins and some slow reporting in November meant television networks did not call Georgia for Biden until 10 days after Election Day, and it took another week for state officials to certify the outcome. And under Georgia's election recount laws, a candidate can request an official recount if the margin is less than or equal to 0.5% of the total vote.

If both Democrats prevail, Biden would take office with his I party narrowly controlling both houses of Congress. If Republicans win one or both Georgia races, the upper chamber could limit the new president even with slim margins.

"It's a big deal who controls the Senate," said Ed Pagano, who spent decades as a Senate staffer before serving in the Obama White House. "The majority leader sets the floor agenda, what bills are brought up and what bills are not brought up. The committee chairs set the agenda for what legislation is considered and what nominations are considered."

A Democratic majority could change the outlook for Biden's nominees that require Senate approval, from the cabinet to judgeships across the country, especially at the appellate level.

Confirmations have only required a simple majority since Democrats ended the filibuster for most nominations in 2013. Democrats could push through circuit judges whom Republicans consider too ideological, much as the GOP did for the past four years.

Experts expect Biden's slate of circuit judges will be more liberal and younger than President Barack Obama's selections, partly in response to President Donald Trump's focus on ideology and youth. But if Republicans keep the Senate majority, Biden's list will be limited to broadly acceptable attorneys.

Pagano, who spent years with the Judiciary Committee, predicted a GOP chairman would be "selective."

"My sense is it's not a total stoppage, but it certainly is a slowdown compared to the pace of the Trump judicial nominations, which really was a machine," he said.

University of Richmond law professor Carl Tobias also said a GOP Senate would constrain Biden's choices.

"The majority really does run the show, and decreasingly is there any deference given by the majority to the minority," he said. "I don't see any reason why McConnell wouldn't play hardball if he has the majority. ... There's just so much bad blood."

On the legislative front, a Democratic-led Senate would be much more likely to consider liberal priorities. Pagano, who's now a partner at Akin Gump Strauss Hauer & Feld LLP, said those range from climate legislation and an immigration bill with a path to citizenship to raising both the minimum wage and the tax rates for top earners.

If Republicans keep control, legislation will generally need broad support in the GOP and consent from committee leaders and Majority Leader Mitch McConnell. Biden would be the first president since 1989 to take office with the opposition party controlling either chamber of Congress.

Regardless of party control, top lobbyists have predicted more pandemic relief this year, perhaps along with a stimulus bill with infrastructure investments. Pagano noted that Biden has a "working relationship" with McConnell after 25 years serving together in the Senate and eight years negotiating during the Obama administration, particularly for the "fiscal cliff" deal in 2012.

Of course, ambitious liberal goals would still be out of reach even with a razor-thin Democratic majority. That's largely thanks to the legislative filibuster, which still requires 60 votes to advance most bills and appears safe from last year's progressive push to eliminate it. Democrats might find a handful of Republican votes but would struggle to win over 10 of the 50 GOP senators.

--Editing by Adam LoBelia.

Update: This story has been updated with additional election results.

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