Senate Judiciary Committee advances Amy Coney Barrett replacement on 7th Circuit to floor over Dem opposition

The Senate Judiciary Committee on Wednesday advanced the nomination of Thomas L. Kirsch II for a seat on the 7th Circuit Court of Appeals to the floor in a party-line vote, moving the Senate one step closer to filling the vacancy created by the confirmation of Justice Amy Coney Barrett. 

President Trump had named Kirsch as his replacement for Barrett before she was even confirmed and the Judiciary Committee took a little over a month after her confirmation to report Kirsch favorably to the Senate floor. 

With the Senate still in session and multiple bills still to be passed this year, the timing of when the Senate might confirm Kirsch is unclear, but it is likely to happen before the Senate leaves town for the holidays. 

Sen. Dick Durbin, D-Ill., on Thursday said he objected to the committee moving ahead with such consequential confirmation efforts even as Trump is a lame duck. 

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"Over the past four years, the Republican side has moved at breakneck speed to consider and confirm President Trump's judicial nominees. Even when there are questions of qualifications, they have kept the nominations assembly line rolling," Durbin said. "Now with President Trump a lame duck – even though many of my colleagues on the other side refuse to acknowledge it – the new administration starting next month, my Republican colleagues are still moving forward with Trump nominees."

Durbin added, regarding Kirsch specifically: "I know the man. He is a qualified person. But it is such an extraordinary process that is being followed that many of us are constrained to vote against his nomination."

The Judiciary Committee also considered a handful of other judicial nominations for lower courts Thursday. 

Kirsch is an outstanding pick and will become President Trump’s 54th pick to the critically important federal courts of appeals, the last stop for more than 99% of federal appeals

— Article III Project President Mike Davis

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Senate Judiciary Committee ranking member Dianne Feinstein, D-Calif., joined Durbin, saying "given the circumstances under which these nominees are being brought up, I intend to vote no on all of them." 

Durbin also mentioned that the Judiciary Committee is moving ahead with a hearing for another circuit nominee, Raul M. Arias-Marxuach, after 1st Circuit Judge Juan R. Tourruella died earlier this year. 

"It appears my colleagues are planning to push through a circuit court nominee in January in a few days before a new president takes office," Durbin said. He continued that pushing the nominations through "is beneath the dignity of this committee" and that "Donald Trump has lost his mandate to fill these vacancies."

Mike Davis, the president of the Article III Project, which is dedicated to boosting Trump judicial nominees, praised the Judiciary Committee and Kirsch on Thursday. 

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"Senate Republicans are still hard at work and continuing to help President Trump with his near-record transformation of the federal judiciary," Davis said. "Thomas Kirsch, who will fill Justice Barrett’s seat on the 7th Circuit, is a Harvard Law graduate and the current U.S. attorney for Northern Indiana – who previously served as a former law partner, federal prosecutor and law clerk."

Davis added: "Kirsch is an outstanding pick and will become President Trump’s 54th pick to the critically important federal courts of appeals, the last stop for more than 99% of federal appeals."

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., noted that in December 2012 and in December 2004 the Judiciary Committee held hearings for nominees during the lame-duck session. Durbin shot back that "in both instances, the president had been reelected."

Trump at this point in his presidency has confirmed more nominees to Article III courts – federal district courts, circuit courts of appeals and the Supreme Court – than any other president besides Jimmy Carter, who benefited from a massive expansion of the federal judiciary that created new federal judgeships for him to fill. 

To appeals courts specifically, Carter confirmed 56 judges to Trump's 53 by this point in his first term. The next-closest is George H.W. Bush, who confirmed 42.