Democrats Should Use Their Senate Majority to Block Trump Judicial Nominees
Source: Aziz Huq. "Midterms 2026 analysis: No more Trump judges.." November 5, 2026. slate.com
The Gist
With Democrats now controlling the Senate, the author argues they should stop Trump from putting any more judges on the courts. The Supreme Court can function with fewer justices, the current court has shifted power from Congress to the president, Republicans did the same thing with Garland, and many Trump-appointed lower-court judges have acted lawlessly.
Conclusion
Having won control of the Senate, Democrats should refuse to confirm Trump's Supreme Court nominees and should presume Trump's lower-court nominees unqualified, even if this leaves judicial vacancies unfilled.
Premises
- Democratic control of the Senate gives them control of the judicial confirmation process for at least six years, and the advanced ages of Alito and Thomas make vacancies plausible before a Republican Senate returns.
- A Supreme Court with vacancies would not be hobbled: its caseload (58 argued cases and 73 opinions last term) could be handled by a smaller bench, which might also reduce arbitrary shadow-docket interventions.
- The Roberts court has systematically weakened Congress and enlarged executive power through its rulings on delegation, agency independence, and presidential immunity, so Senate resistance to new appointments is a constitutionally grounded check consistent with Madison's design of checks and balances.
- Republicans cannot legitimately object, since they blocked Merrick Garland in 2016 and then rushed through Amy Coney Barrett under similar political conditions in 2020.
- Trump-appointed lower-court judges have repeatedly behaved in radical or lawless ways (e.g., the Missouri congressional map order, the D.C. ruling on sanctioning government lawyers, the 5th Circuit Ten Commandments ruling, Judge Cannon, Emil Bove), so business-as-usual confirmation of Trump nominees endangers the rule of law.
Assumptions
- The cited rulings and judges are representative of Trump appointees generally, and reflect lawlessness rather than legitimate legal disagreement.
- The Republican blockade of Garland and fast-tracking of Barrett set a precedent that justifies reciprocal Democratic conduct.
- The Senate's advice-and-consent power legitimately includes refusing to confirm nominees on broad institutional or ideological grounds.
- A smaller Supreme Court and unfilled lower-court seats cause less harm than confirming Trump nominees, and the resulting backlogs are tolerable.
- Blocking appointments will lead to a more judicious, less partisan bench rather than escalating partisan conflict over the courts.
- Madison's checks-and-balances logic applies to Congress checking the judiciary through confirmations, not just to executive-legislative conflict.