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The Senate on Tuesday evening confirmed US District Court Judge Michelle Childs for seat on the DC Circuit Court of Appeals, generally considered the most important court in the nation other than the Supreme Court. Childs, and the circumstances of her nomination and confirmation, provide a good tour of how out of whack the judicial nomination process has become.

Childs was one of the final candidates to be considered by President Joe Biden for the Supreme Court vacancy that eventually went to Justice Ketanji Brown Jackson. Childs had strong support from House Majority Whip (and famous Biden endorser) James Clyburn, as well as from Republican Senator Lindsey Graham. Both are from South Carolina, where Childs went to high school and law school, and where her district court seat was located.

But Childs probably never had a real chance at the Supreme Court. Not because she is probably more moderate than Jackson, but because of one crucial fact: Childs was born in 1966, while Jackson was born in 1970.

A four-and-a-half-year age gap may not seem like a big deal, but as long as the current system of lifetime tenure and the era of strong partisan polarization last, age is going to be the first qualification for every Supreme Court nomination. Four-and-a-half years is more than a full presidential term, giving Jackson (if all else is equal) a slightly better chance to retire with a future Democrat in the White House than Childs would have had.

This does not seem like a great way to choose Supreme Court justices. But that’s where the incentives lie.

Childs and Jackson each represent one of Biden’s signature accomplishments of his presidency: He has significantly added diversity to the federal bench and to the executive branch. He has been particularly aggressive about nominating women, including Black women like Childs and Jackson. While this no doubt reflects Biden’s personal preferences, it is mainly an acknowledgment that the energy of the Democratic Party in recent years has come from women, from Black party actors and from Black women.

Childs wound up with a fair amount of bipartisan support for her DC Circuit confirmation, with 15 Republicans supporting her. One might suppose, then, that she has a potential future as a compromise candidate for the Supreme Court if a Democratic president is faced with a Republican-majority Senate — especially, say, after she completes 10 years or more as an appellate judge (and therefore would be an older nominee).

But we’ve seen this movie before, and we know that Republicans have no interest in compromise. It’s unlikely that even a slim Republican-majority Senate would bring any Supreme Court nominee from a Democratic president up for a vote. Indeed, Merrick Garland, now Biden’s attorney general, was 64 when President Barack Obama nominated him after the death of Justice Antonin Scalia in 2016, and he probably had a more moderate reputation then than Childs does now. But the Republican Senate majority refused to even hold a hearing on his nomination. Several Republican Senators said later during that year’s campaign that they would be unlikely to consider any nominee from Hillary Clinton if she was elected.

Which brings us to why Democrats are rushing to confirm as many judges as possible right now. Republicans need only gain a single Senate seat in this year’s midterm elections to win a majority for the final two years of Biden’s term, and the general expectation is that if they do, they will repeat what they did in 2015-2016: Shut down most judicial nominations, and pretty much all circuit court nominations.

That’s not what happened when Democrats had Senate majorities during the presidencies of Richard Nixon, Gerald Ford, Ronald Reagan, George H.W. Bush and George W. Bush, and it’s not even what Republican majorities did during Bill Clinton’s presidency. But that’s how Republican leader Mitch McConnell and today’s Republicans operate. They could push for compromise candidates, and defeat those — especially appellate nominations — whom they particularly opposed.

That’s why Biden nominated another 11 judges last week, and the Senate is making confirmations a top priority. If Republicans do win a majority in November, expect Majority Leader Chuck Schumer and the Democrats to use the lame duck session late this year to confirm as many of Biden’s nominations as possible.

That in itself isn’t dysfunctional. These are important vacancies and filling them promptly is generally a good thing, although rushing too much to get these lifetime positions filled doesn’t seem all that great. But there’s a plausible future in which Democrats hold the White House and Republicans have a Senate majority for an extended time and the result is a massive judicial shortage, with vacancies never getting filled. 

Bottom line: The judicial nomination and confirmation process is a mess, and it doesn’t appear that it’s going to change for the better anytime soon.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.

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