Fresh off a crushing loss to Donald Trump, Vice President Kamala Harris may now head to Capitol Hill to challenge him in what could be her last major act in office.
As President Joe Biden tries to advance judicial confirmations before he leaves the White House, Democrats are bracing for the possibility of close calls in the process as they aggressively seek to surpass the 234 judges Trump received in his first term.
That’s where Harris would come in. As president of the Senate, Harris uses constitutional powers to cast a divisive vote. A small majority of Democrats have kept Harris in the process throughout Biden’s tenure, breaking the record last year for the most decisive votes of any vice president in history.
It’s an issue of utmost importance to the president — and Senate Majority Leader Chuck Schumer, DN.Y. — that emerged last week when Harris and Biden met for lunch in their first post-election meeting, three sources with knowledge of the meeting said.
“This is something they want to get rid of,” said a top Harris aide.
“He’ll definitely be available for any tie-breaking votes,” said a second senior aide.
“It’s very focused,” said a third person with knowledge of the inner strength.
With Harris leaving on Tuesday for vacation in Hawaii, the votes are not expected to come up in the Senate until December, one of the sources said.
A senior Harris aide said the vice president postponed trips to California and Hawaii where Senate votes would be needed to confirm the judges. Harris was supposed to leave this past weekend but instead left on Tuesday with the intention of returning to DC to get the necessary votes. That aide, and an insider who knows how to plan, said the team decided he wasn’t needed in DC right now but expected a big fight over the judicial nominees in December.
Sen. Elizabeth Warren, D-Mass., on Tuesday said she had been told Harris would be available to break legal ties if needed. He wouldn’t say that he had talked to Harris about it.
“The goal is to fill all the court motions that we can,” Warren said.
Schumer was talking about getting these assurances before Biden left office, said several people with knowledge of the discussions.
He has made it clear that he will use the duck session – the period between the election and the inauguration of a new president – to confirm more judges, as Republicans did in late 2020.
“We will use a disabled duck to convince the judges. And we’re going to do everything we can to get more judges done, trying to overcome Republican obstacles,” Schumer told NBC News in a recent interview.
It’s something that angered Trump, who indicated that Republicans should block any efforts by Democrats to advance their judicial agenda.
“Democrats are trying to pack the courts with leftist justices on their way out the door. Senate Republicans need to Show Up & Hold the Line – No more judges confirmed before Inauguration Day! Trump posted on Truth Social on Tuesday.
But Republicans — who won Trump’s Supreme Court nomination a week before the 2020 election — are powerless to stop it.
GOP members could slow the process, but Democrats need a simple majority to overcome any impasse and confirm the justices. A top Biden administration official working on judicial appointments noted that in the 2020 session, after Trump lost the election, Senate Republicans continued to confirm his judges.
Confirming more judges is a priority for Schumer and Senate Democrats before they cede power to the new Congress, which will be controlled by Republicans in both chambers.
“We will ensure as many judges as possible for the disabled duck,” said Sen. Mazie Hirono, D-Hawaii.
The conflict intensified Monday after Democrats confirmed a judge on the 11th Circuit Court of Appeals. Schumer kept the Senate busy until midnight, holding 18 more votes in six hours to get seven more confirmation votes from Biden’s nominees later this week.
If all are confirmed, that would bring Biden’s total to 223 federal judges.
That’s close to Trump’s final tally of 234 judges confirmed in his first term, a number Democrats have been determined to beat since defeating him in the 2020 election. However, this summer, Schumer stopped short of confirming it.
A Biden administration official said that Trump’s number can be hit, and that there are enough nominees still waiting on the calendar or waiting to be considered in committee.
“We can pass 234,” said the official. “This is not about beating Trump’s numbers. This is about getting the right people on the bench. Is 235 within the realm of possibility? Corner. But that’s not what drives you.”
Currently, the White House has not announced plans to appoint judges to other unfilled vacancies. That includes various openings in red states that are subject to the “blue slip,” which the home state’s Republican senators must sign off on before they can be considered.
A senior administration official declined to discuss whether Biden had spoken with Harris or Schumer about the confirmation of the ducks.
“I will not enter into the discussions the president has,” said the official. “But you can imagine that this is still a topic of discussion and engagement.”
A Senate Democratic aide was encouraged by the idea that Harris would be asked to break ties.
“I hope he’s not needed,” said the assistant. “But I’m glad that’s an option while the Dems have the majority.”
This article was originally published on NBCNews.com
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