WASHINGTON • The judicial nomination of St. Louis lawyer Stephen Clark and roughly a dozen other potential federal judges is in limbo, caught up in a Congress that is struggling to keep the government open as the end of its 115th session approaches.
Clark was nominated by President Donald Trump in early 2017 and was barely passed out of the Senate Judiciary Committee on an 11-10, strictly partisan vote earlier this year.
Democrats criticized his writings opposing abortion, and several civil and gay rights groups wrote letters in opposition. But Clark’s nomination to the Eastern District of Missouri still appeared to be heading to a narrow confirmation in the Republican-controlled Senate.
Several of Trump’s judicial nominations have recently been passed through on tight partisan margins in the 51-49 Senate, with Vice President Mike Pence recently breaking a tie on a nominee from South Dakota.
But this week, with the Senate consumed with debate over major criminal law reforms and a looming shutdown on Friday night if Congress can’t strike a deal on funding about a fourth of the government, the nominations of Clark and other judges awaiting a final Senate vote are up in the air.
Senate Majority Leader Mitch McConnell, R-Ky., expressed hope that he and Senate Minority Leader Chuck Schumer, D-N.Y., could work out a deal to approve a host of Trump’s judicial and executive branch nominees in one large package.
But Schumer later said there had been no discussions about that, and he said Democrats were primarily focused on ways to keep the government open.
Congress is again playing brinkmanship with funding of about a quarter of the federal government, including the Department of Homeland Security, over Democratic objections to Trump’s request for $5 billion to fund a wall on the border with Mexico.
House Minority Leader Nancy Pelosi, D-Calif., who will become speaker when Democrats take control of the House in January, has called the wall “immoral,” and Democrats in the Senate have united in opposition to Trump’s funding request. But Republicans argue that Democrats have voted for immigration changes in the past that included amounts greater than $5 billion for a border wall.
“If you could be for $25 billion in building walls and fences, why couldn’t you be for $5 billion in walls and fences?” Sen. Roy Blunt, R-Mo., said. “This is not that hard a problem to solve.”
McConnell seemed open Tuesday to a deal to keep the government open that included passage of Trump’s judicial nominees; Schumer said he was not prepared to talk about that as long as Trump insisted on a wall-funding amount that Democrats found untenable.
Carl Tobias, a University of Richmond law professor who closely tracks judicial nominations, said 31 judicial nominees had passed committee and were awaiting a floor vote. Clark is number 12 among federal district judges in order of passage through the Judiciary Committee. But not all nominations were as controversial as his.
Tobias said he believed that “even if there is a deal, my best sense is that (Clark) will not have a vote because he is number 12 or so on the district (list) and had an 11-10 party line Senate Judiciary Committee vote.”
The Senate has already heavily overhauled the federal judiciary under Trump, approving 85 federal circuit and district judges nominated by the president, according to McConnell’s office. The 30 circuit judges approved already are a record for a president in his first two years in office.
If Clark is not approved this session of Congress, he could be renominated in 2019 by Trump, and his chances of approval next year could actually improve.
Clark would have to be approved again by the Senate Judiciary Committee, but that committee will not include Sen. Jeff Flake, R-Ariz., who is retiring. Flake has held up several of Trump’s nominees because McConnell won’t allow a vote on a measure protecting Special Counsel Robert Mueller, who is investigating Russian influence on the 2016 campaign.
In addition, the Republican majority in the Senate will rise to 53-47 in 2019 from its current 51-49 majority.