Democrats Should Not Give an Inch to the Lame-Duck Congress

Donald Trump and the Republican Congress have confirmed 57 new federal judges over the last two years. Now, with Republicans on the way out, Trump is demanding that Congress confirm another 25 judges during the lame-duck session.

That’s a tough ask. Confirming judges takes a lot of Senate time and resources, both of which the Republicans might prefer to use for whatever other fell priorities Republicans may have before they are removed from power. It’s also worth remembering that the government runs out of funding (again) on December 11, and figuring out how to avoid (another) government shutdown should probably take priority for Republicans over confirming lame-duck judges.

Adding to the challenge is the question of whether Democratic minority leader Chuck Schumer will be in a deal-making mood when it comes to judges. On the one hand, Schumer allowed a number of Republican-aligned judges to be confirmed at the end of Joe Biden’s term in order to give Biden the “record” for the largest number of judges appointed in one presidential term. On the other hand, Schumer is facing increasingly loud questions about his leadership, and his ascension to majority leader is far from assured. If Chuck caves now—on the budget, on judges, on anything—the calls for his head will only get louder. I don’t think it’s in Schumer’s best interest to help Trump confirm 25 judges in the lame duck and then turn around and ask Democrats to give him the gavel in the new Congress.

Of course, outgoing Senate majority leader John Thune doesn’t need the Democrats to confirm a slate of new judges. He has the votes in his own caucus to do this, assuming retiring or defeated Republican senators are willing to give Trump a parting gift even though he’s ruined their careers.

But I do think if Republicans confirm 25 new federal judges in the lame-duck session, that becomes another data point to convince Democrats to confirm no new federal judges for the last two years of Trump’s term.

Now is the time for judicial hardball, and I hope Democrats get this memo.

The Bad and the Ugly

• Scott Colom defeated Republican Senator Cindy Hyde-Smith by about 3,000 votes in their Mississippi Senate race. Hyde-Smith conceded, saving us all from a weeks-long court battle to confirm her defeat. My mother is a Black woman who was born in Clarksdale, Mississippi, in 1950. Watching her react to a Black person being elected as senator from her home state for the first time in 145 years has been one of the joys of my life.
• In Alaska, Senate candidate Mary Peltola now has more votes than both Dan Sullivans combined, further obviating the Department of Justice’s antidemocratic lawsuit aimed at overturning the election, and making even more of a mockery of Trump’s wild claims that all of one Dan Sullivan’s votes should be given to the other. Peltola still hasn’t quite breached the 50 percent barrier, which is the point at which the state shuts down the ranked-choice voting process, but there are still more votes to count.
• Remember when Trump said he would accept the results of the election after his party got walloped? Yeah, that didn’t last a week. On Monday, Trump asked on Truth Social, “Does anybody really believe this ‘Election’ was honest. How could the Polls be so wrong??? Some early voting ‘dumps’ were so large that it was impossible to win, no matter how many people went to vote.” An authoritarian goon does not change his spots so easily, and everybody who thought he did deserves another time-out in the dunce chair.
• The Kennedy family joined the lawsuit to block Trump’s arch, saying that the monstrosity would disturb and diminish John F. Kennedy’s gravesite at Arlington. I have watched enough movies to know that you should never disturb the ancestral burial grounds if you can possibly avoid it.
• Russell Brand was sentenced to 10 years in prison for rape and sexual assault. At the sentencing hearing, Justice Joel Bennathan said, “Whatever women wear, wherever they go, indeed whatever they drink, they retain the right to say no and to demand justice from the criminal courts when sexual predators like you, Russell Brand, act without their consent.” I don’t have a joke here. This is just a perfect and true statement.

Inspired Takes

• Not gonna lie, I have enjoyed the Pope Leo experience. In The Nation, Victor Gaetan writes about how Pope Leo has gone to war—against war. Specifically, Pete Hegseth’s wars.
• In The New Republic, Perry Bacon makes the point that the “groups” that centrists and Democratic consultants maligned over the past few years are the reason Democrats won the midterms.
• Jamelle Bouie has a great article on the new “Southern Strategy” that helped the Democrats win in the South. Maybe next time the Democratic Party could actually invest in that strategy and give these candidates some money.

Worst Argument of the Week

OK, I think I understand what happened with the Pete Hegseth “impeachment” situation, and I think there‘s a lot of confusion out there that’s causing Democrats to get criticized unnecessarily. TLDR: This wasn’t the real Hegseth impeachment effort. The real one will be coming in the next Congress.

Here’s what happened. Representative Thomas Massie submitted articles of impeachment for Pete Hegseth on eight charges (mostly relating to the war in Iran and the extrajudicial killings Hegseth has overseen). Massie is a Republican from Kentucky who has been vocal about the Epstein files—so vocal that Trump backed Massie’s primary challenger, Ed Gallrein, who defeated Massie in the primary and won Massie’s seat last Tuesday. Massie is on his way out, and the impeachment articles were a parting gift to an administration he hates.

Trying to impeach Hegseth now, in the lame-duck Congress, was a stunt. And a stupid one.

In any event, there was a procedural vote this week on whether to send the articles of impeachment to the full House (which is still controlled by Republicans) or leave it with the House Judiciary Committee (which is still controlled by Republicans). The option to send it to the full House (which is what Democrats ostensibly wanted) was defeated 211–204, with only Massie breaking party ranks and joining Democrats in the losing effort. Eleven Democrats and seven Republicans “missed” the vote. Many people have pointed out that if the 11 Democrats had shown up, the measure would have passed (many of these people skip over the fact that if the seven Republicans had shown up to counter the Democrats, the measure would have failed). Since the Democrats have a history of snatching defeat from the jaws of victory, a firestorm over weak Democratic leadership erupted online.

Here’s the thing that I think is important to remember: Hegseth was never going to be impeached by this Republican-controlled Congress, and there were two legitimate dangers in trying to force it:

1. No investigation
2. Double jeopardy

There is a lot of potential evidence that Pete Hegseth has committed high crimes and misdemeanors, but Massie, acting on his own, was not in a position to provide any of it. Hegseth needs to be investigated by the House Judiciary Committee; that will not happen as long as Republicans control Congress. But I will bet all the money in my grabbable area that he will be investigated, once Representative Jamie Raskin is in charge of the Judiciary Committee. Impeaching him now, without that investigation, looks like a political stunt spearheaded by a bitter politician because it is. After Raskin gets ahold of the gavel, it will look a lot different.

And that might matter, legally speaking, because we might get only one shot at this. Look, I don’t believe that “double jeopardy”—the prohibition against prosecuting somebody twice for the same crime—should apply to impeachment proceedings. But, as I must regularly remind people, I don’t happen to have a seat on the Supreme Court. If you impeach Hegseth now, and he gets acquitted, can you impeach him six months from now for the same crimes? I think so. But I don’t know so. And I don’t want to give John Roberts, Clarence Thomas, and Samuel Alito an opportunity to answer that question for me.

Is it a bad look for 11 Democrats to “miss” a vote on impeachment so soon after the midterms? Sure. The optics are not good. The communication from the Democratic leadership on what really happened is worse. But by the same token, the “optics” around doing a rushed impeachment—a rushed impeachment that is destined to fail in front of a Republican-controlled House—are arguably worse.

If I were in the leadership chair (and I’ll note that’s yet another job I don’t have), I’d have told all my members to opt out of Massie’s vainglorious charade.

Democrats will impeach Pete Hegseth when they have their ducks in a row. They don’t need a Republican who has been booted out of Congress to lead the charge.

What I Wrote

Soo… I have the cover story in the December issue of the magazine. You can read it online here. It’s about how Democratic presidential hopefuls should campaign on court reform in 2028, and what will happen to their entire agenda if they do not.

I also wrote about how Texas has a new Democratic attorney general who will become the regulator of first resort of Elon Musk and his companies.

In News Unrelated to the Current Chaos

I’m not going to watch the new HBO Harry Potter series. I’m not going to watch it because the creator of Harry Potter, J.K. Rowling, is a drooling transphobic bigot.

There are a lot of artists and creators who are problematic in some obvious and heinous way. Rowling has committed no crime, but where she stands out to me is that she’s made being a bigoted scumbag her entire personality. It’s not that she’s said a few anti-trans things, here or there. It’s that she’s happily become the face of the anti-trans movement in the UK. It’s that she uses her money and power and influence to fund anti-trans organizations that try to erase trans people from public life. She works, tirelessly it would seem, to menace trans people and manipulate the laws against them. When you support a J.K. Rowling project, you are directly supporting her financial efforts to hurt trans people. Why would you do that?

And here’s the thing about boycotting Rowling media products: It’s easy. There are so many evil people in the world whose products have been integrated into our lives in ways that make it almost impossible to excise them. I hate Jeff Bezos, for example, but pretending Amazon and The Washington Post don’t exist is really hard. I don’t support the actions of the Saudi Arabian government, but it has major investment stakes in Uber and the company that makes football video games. And, speaking of football, I believe I’ve already discussed my ongoing issues with loving a sport that is based on my favorite athletes’ getting repeatedly concussed into early oblivion.

But Harry Potter? A Harry Potter television show? I can cut Harry freaking Potter out of my life with almost no downside. If the question is, “Watch a television show or stand with transgender people?,” it’s the easiest call in my otherwise complicated journey of trying to be a moral person in an immoral world.

“What’s on HBO tonight, honey?”
“Transphobus Maximus!”
“Umm… what else is on HBO?”
“Well, John Oliver comes on in about an hour.”
“Cool, let’s watch LITERALLY ANYTHING ELSE until then.”

It’s not hard. Just don’t watch Harry Potter and let trans people live their best lives.

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