Fresh from a devastating loss to Donald Trump, Vice President Kamala Harris may now head to Capitol Hill to defy him in what could be her last major act in office.
As President Joe Biden attempts to advance a crush of judicial confirmations before he leaves the White House, Democrats are bracing for the possibility of close calls in the process as they ambitiously seek to top the 234 judges Trump secured during his first term.
That’s where Harris would come in. As the president of the Senate, Harris wields the constitutional power to provide a tie-breaking vote. Democrats’ slim majority has made Harris a go-to on this procedure throughout Biden’s tenure, having broken a record last year for casting the most decisive votes of any vice president in history.
It is an issue so important to the president — and Senate Majority Leader Chuck Schumer, D-N.Y. — that it came up 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 clear the decks on,” a senior aide to Harris said.
“She will definitely be available for any tie votes,” a second senior aide said.
“It is a big focus,” a third person familiar with internal dynamics said.
With Harris leaving Tuesday for a respite in Hawaii, the votes aren’t expected to come up in the Senate until December, one of the sources said.
A senior Harris aide said the vice president delayed her trip to California and Hawaii in the event that she would be needed for votes in the Senate to confirm judges. Harris was supposed to leave this past weekend but instead left Tuesday with the intention of returning to D.C. for needed votes. That aide, as well as a person familiar with planning, said the team determined she was not needed in D.C. right now but to expect a major battle over judicial nominees in December.
Sen. Elizabeth Warren, D-Mass., on Tuesday said she had been told that Harris would be available to break judicial ties if needed. She would not say if she had personally spoken to Harris about it.
“The goal is to fill every judicial nomination that we can,” Warren said.
Schumer has been vocal about getting through these confirmations before Biden leaves office, several people with knowledge of the conversations said.
He has made clear he would use the lame-duck session — the period between the election and when the new president is inaugurated — to confirm more judges, as Republicans did in late 2020.
“We are going to use the lame duck to confirm judges. And we’re going to do everything we can to get as many judges done as possible, trying to overcome the Republican obstruction,” Schumer told NBC News in a recent interview.
It’s something that’s already irking Trump, who signaled that Republicans should block any attempts by Democrats to further their judicial agenda.
“The Democrats are trying to stack the Courts with Radical Left Judges on their way out the door. Republican Senators need to Show Up and Hold the Line — No more Judges confirmed before Inauguration Day!” Trump posted on Truth Social Tuesday.
But Republicans — who famously pushed through a Trump Supreme Court appointment just one week before the 2020 election — do not have the power to stop it.
GOP senators can slow the process down, but Democrats need a simple majority to overcome any obstruction and confirm judges. A senior Biden administration official working on judicial nominations noted that in the 2020 lame-duck session, after Trump had lost the election, Senate Republicans continued to confirm his judges.
Confirming more judges is the top priority for Schumer and Senate Democrats before they relinquish power to the new Congress, which will be controlled by Republicans in both chambers.
“We’ll confirm as many judges as possible in the lame duck,” Sen. Mazie Hirono, D-Hawaii, said.
The clash came to a head Monday after Democrats confirmed a judge to the 11th Circuit Court of Appeals. Schumer kept the Senate in session until nearly midnight, holding another 18 roll-call votes over a six-hour span to tee up another seven confirmation votes on Biden-picked judges later this week.
If they’re all 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 that Democrats have set out to beat since they defeated him in the 2020 election. This summer, however, Schumer stopped short of guaranteeing it.
The Biden administration official said the Trump number is beatable, arguing that there are enough pending nominees on the calendar or awaiting consideration in committee.
“We could exceed the 234,” the official said. “This is not about beating Trump’s numbers. This is about getting good people on the bench. Is 235 within the realm of possibility? It is. But that’s not what’s driving it.”
At this time, the White House has not announced plans to nominate judges to other unfilled vacancies. That includes various openings in red states that are subject to the “blue slip” courtesy, where home-state Republican senators must sign off before they get consideration.
The senior administration official declined to discuss whether Biden has talked to Harris or Schumer about lame-duck confirmations.
“I’m not going to get into conversations the president has had,” the official said. “But you can certainly assume this remains a topic of discussion and engagement.”
A Senate Democratic aide was heartened by the notion that Harris would be on call to break ties.
“Hope she’s not needed,” the aide said. “But glad that’s an option while Dems have the majority.”
This article was originally published on NBCNews.com
