Fresh off a devastating loss to Donald Trump, Vice President Kamala Harris may now head to Capitol Hill to face him in what could be her last major act in office.
As President Joe Biden tries to advance a slate of judicial confirmations before he leaves the White House, Democrats are bracing for the possibility of close calls in the process as they ambitiously try to surpass the 234 judges Trump appointed during his first term has secured.
That's where Harris would come into the picture. As president of the Senate, Harris has the constitutional power to provide a tie-breaking vote. Democrats' narrow majority has made Harris a regular candidate for this procedure during Biden's term, after he broke a record last year for casting the most tie-breaking votes of any vice president in history .
It's an issue that's 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 meeting after the election, three sources with knowledge of the meeting said.
“This is something they want to clean up,” said a senior Harris aide.
“She will certainly be available with an equal number of votes,” said a second senior aide.
“It's a big focus,” said a third person familiar with the internal dynamics.
With Harris leaving on Tuesday for a trip to Hawaii, votes are not expected to take place in the Senate until December, one of the sources said.
A senior aide to Harris said the vice president postponed her trip to California and Hawaii in case she was needed for Senate votes to confirm judges. Harris was scheduled to leave last weekend, but instead left on 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 had decided she was not needed in D.C. at this time, but to expect a major battle for judicial nominees in December.
Sen. Elizabeth Warren, D-Mass., said Tuesday she had been told Harris would be available to cut judicial ties if necessary. She would not say whether she had personally spoken to Harris about it.
“The goal is to fill every possible judicial nomination,” 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 that he would use the lame-duck session – the period between the election and the inauguration of the new president – to appoint more judges, as Republicans did in late 2020.
“We're going to use the lame duck to confirm judges. And we're going to do everything we can to get as many judges on the bench as possible in an effort to overcome Republican obstruction,” Schumer recently told NBC News.
It's something that already irritates Trump, who has indicated that Republicans must block any attempt by Democrats to advance their judicial agenda.
“The Democrats are trying to stack the courts with radical left judges walking out the door. Republican Senators need to show up and hold the line – no more judges confirmed before Inauguration Day!” Trump posted this on Truth Social Tuesday.
But Republicans — who famously pushed through Trump's Supreme Court nomination just a week before the 2020 election — don't have the power to stop it.
Republican senators can delay the process, but Democrats need a simple majority to overcome any obstacles and confirm judges. A senior Biden administration official who worked on judicial nominations noted that during the 2020 lame-duck session, after Trump lost the election, Senate Republicans continued to confirm his judges.
Confirming more judges is the top priority for Schumer and Senate Democrats before handing power to the new Congress, which will be controlled by Republicans in both chambers.
“We will confirm as many jurors as possible in the lame duck,” said Sen. Mazie Hirono, D-Hawaii.
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 in the span of six hours to secure another seven confirmation votes on judges chosen by Biden later this week.
If all are confirmed, it would bring Biden's total to 223 federal judges.
That's close to the final number of 234 judges Trump confirmed in his first term, a number Democrats have been looking to beat since they defeated him in the 2020 election. This summer, however, Schumer could not guarantee this.
The Biden administration official said Trump's figure is beatable, arguing that there are enough nominees pending on the calendar or awaiting consideration in committee.
“We could exceed 234,” the official said. “This isn't about beating Trump's numbers. It's about getting good people on the bench. Is 235 within the realm of possibility? It is. But that is not the driving force.”
At this time, the White House has not announced any plans to appoint judges to other open positions. That includes several openings in red states that are subject to the “blue slip” courtesy, where home-state Republican senators must sign before being eligible.
The senior administration official declined to discuss whether Biden has spoken to Harris or Schumer about lame-duck confirmations.
“I will not comment on conversations the president has had,” the official said. “But you can rest assured that this will continue to be a topic of discussion and engagement.”
A Senate Democratic aide was encouraged by the idea that Harris would be on call to cut ties.
“I hope she's not needed,” the assistant said. “But I'm glad that's an option now that the Democrats have the majority.”
This article was originally published on NBCNews.com
