How will the 2018 midterm elections affect the courts?

U.S. President Trump Addresses Joint Session of Congress - Washington, U.S. - 28/02/17 - U.S. Supreme Court Justices listen as U.S. President Donald Trump addresses Congress. REUTERS/Kevin Lamarque - HP1ED310733XH
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Congress affects the courts in many ways—funding, operations, jurisdiction. Which judges are confirmed has increasingly become dependent partly on whether Republicans or Democrats have control of the Senate. Based on the results of upcoming 2018 midterm, the balance of power in Congress will determine what will happen in the courts in the future. Watch Brookings Visiting Fellow Russell Wheeler explain the ways in which Congress has the potential to impact the courts following the 2018 midterm elections.

What you need to know:

  • If the Democrats take control of the House of Representatives in the midterm elections, they may attempt to impeach Justice Brett Kavanaugh or, more likely, investigate matters that they believe Senate Republicans did not investigate fully.
  • If the Republicans keep control of the House, we may see some legislative moves and bills that affect Supreme Court ethics additional judgeships, and cameras in federal courts.
  • If the Republicans keep control in the Senate, then Senate Majority Leader Mitch McConnell will keep pushing President Trump’s judicial nominations through, especially on the Courts of Appeals.
  • If the Democrats take control of the Senate, though unlikely, expect to see judicial confirmations come to a stop as payback for Republican’s failure to confirm any but a handful of judges in the last two years of the Obama administration.
  • More Supreme Court vacancies might occur. For one thing, two of the more liberal justices are over 80 years old.
  • If a vacancy occurs in 2020, Majority Leader McConnell will try to justify confirming a Trump nominee even though he stonewalled Obama’s 2016 Merrick Garland nominee because 2016 was an election year. He recently justified the Garland stonewall on the grounds that not since the 1880s has an opposite-party Senate confirmed a nominee for a vacancy occurring in a presidential election year. That’s true, even though a Democratic Senate confirmed President Reagan’s nomination of Justice Kennedy in February 1988, but McConnell will likely try to thread the needle by observing that the vacancy Kennedy filled occurred in 1987.

Emma Russell contributed to this post.