When the Senate and the President Disagree on Judges, History Shows What Follows

The Constitution gives the President a pen and the Senate a veto, and then leaves them to work it out. When both belong to the same party, the work is quick. When they do not, the Constitution turns out to be a negotiating text with an unusually clear deadline: the next election.

Here is where we stand. In the November 3, 2026 midterms, Democrats won control of the Senate, as reported by CBS News, NPR, Fox News and the New York Post. The new Congress, the 120th, begins on January 3, 2027, and from that day Republicans will be the minority in the Senate. Donald Trump will still be President, in his second term, with JD Vance as Vice President. So for judicial nominations, the pen and the veto will sit in different hands. I will not guess at the seat counts or the personalities. I want to do the thing that is more useful than a forecast, which is to ask what the record says about how this arrangement has worked before.

The terms: what the Senate actually controls

Start with the text. Article II, Section 2, Clause 2 says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Two steps: the President nominates, the Senate consents. Neither step can be skipped, and nothing in the Constitution says how the Senate must go about consenting.

That silence gives the majority party real tools. Here is the list.

1. The Judiciary Committee. Nominations to the federal bench go first to the Senate Judiciary Committee, whose chair belongs to the majority party. The chair sets the hearing schedule, decides when to hold a committee vote and controls much of the pace. A chair who does not want to move a nominee need not schedule the hearing.
2. The floor calendar. Even when the committee reports a nomination, the majority leader decides when and whether it reaches the floor. The Senate has finite days, and judges compete with legislation, other nominations and everything else.
3. The blue slip. By long tradition, the Judiciary Committee sends a "blue slip" to the two home-state senators of a nominee for a district court seat, and the chair has often declined to proceed without them. The tradition has varied by chair and by court. I explain its history and its limits in The Blue Slip Explained, a Senate Courtesy That Shapes Every Federal Bench. It matters in this discussion because, under a majority of the other party, the blue slip becomes a way for a home-state senator of the majority party to shape or stop a nomination in his own state.
4. The vote threshold. In 2013 the Senate, then under Democratic control, eliminated the filibuster for most nominations other than the Supreme Court. In 2017, under Republican control, it extended that to the Supreme Court. Since then a simple majority is enough to end debate and to confirm. I trace that story in The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended. The consequence is that the majority party can confirm nominees without help from the minority, and the minority cannot block a nominee by itself. That cuts both ways, and it is a good reason to think about the incoming majority's power and not just the outgoing one's.

None of this is a scandal. It is the design. The Senate's role is to check the President, and a Senate controlled by the opposition checks harder.

What history says: four divided periods

Let me give you the record before I give you the lesson. I will use four examples, and I will state only what I am sure of.

1955 to 1960: Eisenhower and a Democratic Senate

Democrats took the Senate in the elections of 1954 and held it for the rest of Eisenhower's presidency. In those years, Eisenhower still shaped the Court. He nominated John Marshall Harlan II, a federal appeals judge from New York, in November 1954 and again in January 1955, and the Senate, by then in Democratic hands, confirmed him in March 1955. In October 1956, with the Senate out of session, Eisenhower gave a recess appointment to William J. Brennan Jr., a New Jersey Supreme Court justice and a Democrat, and the Senate confirmed him in March 1957. The pattern is a President choosing nominees who could win the support of a Senate controlled by the other party, and doing it with an eye on qualifications and regional and political balance.

1987 to 1988: Reagan and a Democratic Senate

This is the textbook case. Democrats won the Senate in the 1986 elections and took control in January 1987. In June 1987, Justice Lewis Powell announced his retirement, and President Reagan nominated Judge Robert Bork of the D.C. Circuit in July. The Judiciary Committee, chaired by Senator Joe Biden, held lengthy hearings in the fall, and on October 23, 1987, the Senate rejected the nomination by a vote of 58 to 42. The fight, which I describe in The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign, turned a confirmation into a public campaign with advertisements and organized opposition.

The sequel is instructive. Reagan next named Judge Douglas Ginsburg, who withdrew within days after controversy over his past. Then, in November 1987, Reagan nominated Judge Anthony Kennedy of the Ninth Circuit, a conservative-leaning jurist with a reputation for fairness who had been through the confirmation process before. The Senate confirmed Kennedy on February 3, 1988, by a vote of 97 to 0. The lesson that the fight over Bork produced was not that the Senate would not confirm conservatives; it confirmed Kennedy unanimously. The lesson is that an opposition Senate will reject a nominee it regards as a standard-bearer and will confirm one it regards as mainstream. The President's choice of name decided the outcome.

2015 to 2016: Obama and a Republican Senate

In the elections of 2014, Republicans won the Senate and took control in January 2015. On February 13, 2016, Justice Antonin Scalia died. President Obama nominated Chief Judge Merrick Garland of the D.C. Circuit on March 16, 2016. Majority Leader Mitch McConnell and the Republican majority announced that the Senate would not hold hearings or a vote, on the theory that the vacancy should be filled by the winner of the 2016 election. No hearing was held, and the nomination expired at the end of the Congress. I treat the arguments on both sides in Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means.

Here I will say what I think the history shows, as a matter of constitutional structure rather than partisan advantage. The Constitution does not require the Senate to vote on a nominee. It says the President appoints "by and with the Advice and Consent" of the Senate, and the Senate, as the body that consents, can decline to act. Democrats and Republicans have both argued the opposite position when it suited them, which is the best evidence that the rule is a matter of power and not principle. If you accept the 2016 precedent as legitimate, you accept it for every majority. A conservative who defends the Garland decision should be prepared to defend the same tool in Democratic hands.

1995 to 2000: Clinton and a Republican Senate

For the last six years of Bill Clinton's presidency, the Senate was Republican. The President continued to nominate lower-court judges, and the pace of confirmations during those years was a recurring complaint of his allies. It is a reminder that the quiet, steady squeeze on the lower courts does not require a headline fight. It requires a calendar. The Supreme Court had no vacancy in that period, so the pressure showed up in the courts of appeals and the district courts, where the Senate can slow the pace without taking a recorded vote on any controversial nominee. I mention this period only briefly, because the details of the numbers vary by source and I would rather you check them in the Senate and Judiciary Committee records than take my word.

The lesson: three ways it can go

If I define the options and number them, there are three patterns in the record.

1. Confrontation. The President nominates a standard-bearer and the opposition majority defeats or stalls him. Bork in 1987 and Garland in 2016 are the examples, although they differ in that Bork got a vote and Garland did not. The result in both cases was that the seat went to a different nominee, chosen later, and the nominating party spent political capital on a fight it lost.
2. Accommodation. The President nominates someone acceptable to both sides, and the Senate confirms him. Kennedy in 1988 and Brennan in 1957 are examples. Accommodation takes a President who is willing to trade the pleasure of a base-pleasing nominee for the certainty of a confirmed one.
3. Stalemate. The Senate does not act, the vacancy continues and the matter is settled at the next election. That outcome was the 2016 result, and, over longer periods, it is what happens to many lower-court nominees in divided years.

Which of the three prevails depends on the President's choices, the Senate majority's incentives and the political season. None of them is a surprise to anyone who has read the Constitution.

What a President can still do

A common mistake is to assume that a President facing an opposition Senate is helpless. He is not. The pen still works, and several tools remain.

• Nominate consensus picks. The Kennedy example shows that a nominee with a reputation for fairness and a record that the other side can live with can win a unanimous vote. A President who wants judges confirmed can choose people whom home-state senators of both parties will support.
• Work with home-state senators. For district court seats, a nominee supported by both senators of a state, including a senator in the opposition majority, can clear the blue-slip hurdle. In earlier eras, Presidents and senators from different parties often reached package agreements for a state's vacancies. I will not claim that this will happen again, only that the structure invites it.
• Use the time before the new Senate arrives. The 119th Congress, in which Republicans hold the Senate, continues until January 3, 2027. Nominations that can be confirmed before then are confirmed by the current Senate. After that date, the Senate's rules ordinarily return nominations that are pending at the end of a Congress to the President, unless the Senate agrees by unanimous consent to keep them, and the new Senate begins fresh. I would check the Senate's published rules and the calendar for the details, since they depend on decisions that have not yet been made.
• Consider recess appointments, within their limits. Article II, Section 2, Clause 3 allows the President to "fill up all Vacancies that may happen during the Recess of the Senate." But in NLRB v. Noel Canning (2014), the Supreme Court held that a recess of less than ten days is presumptively too short for the clause, and that the Senate can prevent recesses by holding pro forma sessions. In practice, a Senate that does not want recess appointments can block them, as the opposition did in the Obama years. The Brennan appointment of 1956 happened in a very different era of Senate practice.
• Fill executive offices and prepare the record. Judicial nominations are one part of a President's relationship with the Senate. Others include executive branch posts, treaties and legislation, and the way those negotiations go will affect how nominees fare.

The other side's best argument

A fair treatment has to present the strongest case that divided government should be avoided in the judiciary. The argument runs like this: A seat that stays vacant harms litigants, because courts with unfilled seats move slowly. An opposition Senate that refuses to act is placing partisan advantage above the public's interest in a working judiciary. The Constitution gives the Senate a role in confirmation, not a power to nullify the President's choice of judges by inaction.

There is force in that argument. Delay has a real cost, and the people who pay it are not senators but plaintiffs and defendants waiting for trial. I would answer in three points. First, the cost is the cost of the check. Every check slows something down, and a Senate that can never slow a nominee is a Senate that does not check. Second, voters chose divided government in a democratic election, and one of the things they chose is slower confirmation. Third, the best cure for judicial vacancies is a President who nominates people the Senate can approve, which is the lesson of Kennedy in 1988.

What this does and does not mean for conservatives

The question for a conservative is not how to pretend that the new majority will be friendly. It is how to keep the thing we care about, which is a judiciary that follows the text of the Constitution, while the arrangement is awkward. I would offer four principles.

1. Consistency over convenience. Any tool a conservative majority used in the last years, from changing filibuster rules to declining to act on a vacancy, will be available to the next majority. A conservative who claims the tool is legitimate when used by his own side and illegitimate when used by the other is arguing a result and not a principle.
2. Quality over quantity. In divided government, the nominee who can be confirmed and who will rule faithfully for thirty years is worth more than the nominee who makes a good headline and never gets a vote.
3. The lower courts matter. Nearly every federal case begins and ends in district courts and courts of appeals. The Supreme Court hears only a sliver. A President who focuses on the Supreme Court and ignores the lower courts misses the place where most of the law is made. See Four Votes to Hear a Case, Five to Win It, Inside the Supreme Court's Docket for the arithmetic of the Court's docket.
4. The people have the last word. Every seat, every Senate majority and every President is subject to the next election. Divided government is a message, and the answer is persuasion.

For the fuller picture of how Congress works, see the Congress guide and the Constitution's text at the Constitution page, and track the nominations in front of the Senate through the Senate's own records.

The case in brief

1. The Constitution requires the President to nominate and the Senate to consent, and gives the Senate's majority control of the Judiciary Committee, the floor calendar, the blue slip tradition and, since 2017, confirmation by simple majority.
2. With Democrats set to take the Senate on January 3, 2027, while Donald Trump remains President, judicial nominations will run through an opposition majority.
3. Earlier divided periods show three patterns: confrontation, as with Bork in 1987 and Garland in 2016, accommodation, as with Kennedy in 1988, and stalemate.
4. A President can still nominate consensus picks, work with home-state senators, use the weeks before January 3 and respect the limits on recess appointments, but he cannot confirm a nominee alone.
5. Conservatives should defend whatever rules they would accept from the other side, and should keep their eye on the lower courts.

What you can do: look up your two U.S. senators, read the Senate Judiciary Committee's public schedule and write to them in your own words about the qualities you want in a federal judge.