Biden Wins Wide Berth On Judicial Picks With Senate Victory

Law360 (January 6, 2021, 4:31 PM EST) -- Democrats have secured a narrow Senate majority after winning the second of Georgia's two runoff elections, boosting President-elect Joe Biden's legislative agenda and giving him broad latitude when picking federal judges.

The Associated Press called the second race for Democrat Jon Ossoff about 4 p.m. Wednesday after his lead over Republican Sen. David Perdue widened to 0.6%, exceeding the recount threshold with about 98% of votes counted. The news service had declared Democrat Raphael Warnock the victor over incumbent Republican Kelly Loeffler at 2 a.m. Wednesday as he led by more than a percentage point.

The runoff results mean Democrats and Republicans will each control 50 seats in the Senate. Once Vice President-elect Kamala Harris takes office Jan. 20, her tie-breaking vote will decide the majority.

Unified Democratic control of the White House, Senate and House of Representatives gives Biden's party more power over judicial nominations and — to a lesser degree — legislation.

Even with a Democratic majority in the Senate, enacting new laws will generally still need support from at least 10 Republican senators because of the filibuster. Long-standing Senate rules require a three-fifths majority, or 60 votes, for a proposal to advance.

Any progressive push to abolish the legislative filibuster would likely run into opposition from moderate Democrats like West Virginia Sen. Joe Manchin, who has vowed to oppose such a move.

Even so, control of the Senate still eases the path for Democratic legislative priorities. Committee leaders and the majority leader decide what measures get votes. It may be easier for Democrats to find 10 Republican votes than it would have been to win over the GOP majority leader and conservative committee chairs.

There is also a narrow route for Democrats to make law with a simple majority in the Senate. The budget reconciliation process allows for a few such votes each year on measures that affect spending and revenue. Democrats used the process to make important changes to the Affordable Care Act in 2010, according to the Congressional Research Service; in 2017, Republicans used it to pass major tax cuts and for an unsuccessful attempt to repeal the ACA.

While the filibuster will constrain Biden's legislative goals, it no longer limits a president's choices for the federal judiciary.

Senate Democrats in 2013 voted to end the filibuster for most nominations, lowering the confirmation threshold to a simple majority, with Manchin one of three Democrats in opposition. Republicans in 2017 extended the change to all nominations including to the U.S. Supreme Court.

Another GOP change in 2017 also gives Biden more latitude when picking judges. Republicans curtailed a century-old tradition that effectively gave senators a veto for appeals court picks from their home states; the "blue slip" custom continued for district courts. The Democrat expected to chair the Judiciary Committee, Illinois Sen. Dick Durbin, has not discussed plans to modify the status quo.

The Democratic Senate majority will allow Biden to name appellate judges over Republican objections. Experts expect a slate of nominees more liberal than President Barack Obama's, partly in response to President Donald Trump's focus on ideology and youth. Biden is expected to focus on demographic and professional diversity with a list of likely contenders that includes civil rights attorneys and public defenders.

Of course, Democrats will not claim the Senate majority until Harris becomes vice president on Jan. 20.

Kentucky Republican Mitch McConnell will have two more weeks as majority leader before New York Democrat Chuck Schumer is expected to assume the position.

They might negotiate a power-sharing agreement, as party leaders did in 2001 when the chamber was evenly divided. That deal let the vice president's party, the Republicans, pick the majority leader and committee chairmen. However, it also gave each party equal numbers on committees and made it easier for the minority party to get floor votes on bills.

Schumer told reporters about noon Wednesday that he would "look forward to sitting down with Senator McConnell" to discuss possible arrangements.

--Editing by Bruce Goldman.

Update: This article has been updated with details about the election results.

For a reprint of this article, please contact reprints@law360.com.

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