Judicial Hub

Democrats Won the Senate. The Judiciary Will Feel It for Decades.

This week, 124 million people exercised their constitutional right and voted for a congressional candidate, leading to the Democratic Party winning a projected 56 seats in the Senate and 260 seats in the House of Representatives.1 This article focuses on the Senate and how Democrats’ Senate gains will affect the federal judiciary for decades to come.

The 120th Congress, which convenes on January 3, 2027, will have 56 Democratic Senators (for this article, we count Democratic-caucusing independents as Democrats).1 With this, the next Democratic Majority Leader, who is yet to be chosen, will have significant sway over which judicial nominees will be voted on by the full Senate. A Democrat will also chair the Senate Judiciary Committee, and that will be Sheldon Whitehouse (D-RI).2 Whitehouse has modestly supported Trump’s judicial nominees this term, with a total of 6 votes to confirm, but as chair he will have, among other powers, the ability to schedule hearings for judicial nominees and determine whether a nominee will even proceed.3

Unlike previous Congresses, Democrats will have a much higher share of seats on the committee, as they will have a higher number of Senate seats (56).1 Currently, Democrats make up 10 of the 22 members: Dick Durbin (IL), Sheldon Whitehouse (RI), Amy Klobuchar (MN), Chris Coons (DE), Richard Blumenthal (CT), Mazie Hirono (HI), Cory Booker (NJ), Alex Padilla (CA), Peter Welch (VT), Adam Schiff (CA). Durbin and Klobuchar will not be present in the next Congress. The White House would need to please these senators to win their votes for a nominee after the hearing. This can be done via bipartisan “packages” (for example, one more conservative nominee along with a more moderate or liberal nominee) or simply a more moderate candidate. Nominating someone similar to those confirmed in 2025 or 2026 would be especially difficult, as his nominees received significantly less bipartisan support than in previous Congresses, with the typical nominee this Congress drawing zero Democratic votes (a median crossover of 0).

If Trump gets a nominee out of committee, the nominee must still be voted on by the full Senate. In practice, he would then need the support of the Democratic Majority Leader to get a floor vote scheduled. Both the cloture vote (the vote to end debate) and the confirmation vote require only a simple majority. In addition, Trump would need 5 other Democrats, or 6 without the leader’s vote, to invoke cloture and confirm the nominee, assuming every Republican votes yes, Vice President Vance breaks any tie, and no senators are absent. Note that of the 20 Democratic senators who crossed party lines to vote for a nominee this Congress, four will not be present in the next Congress: Richard Durbin, Jeanne Shaheen, Amy Klobuchar, and Gary Peters. Durbin voted to confirm 10 times, the highest out of all of them. On the flip side, many of the new Democratic senators will be from states that Trump won in 2024: Mary Peltola (AK), Josh Turek (IA), Adam Hamilton (KS), Roy Cooper (NC), Sherrod Brown (OH), Annie Andrews (SC), and James Talarico (TX). These new senators can provide some bipartisanship under their belts if they desire so.

Home-state senators effectively hold a veto over district-court nominees. For a district nominee to receive a hearing from the committee, the senators of the state in which the district is located must approve of the nominee by returning a “positive blue slip” they received from the committee. If they don’t approve, they withhold or return a “negative” blue slip. Under current practice, a nomination can’t advance without positive slips from both senators. If both are obtained, the committee can hold a hearing. Democratic senators are already using that power.4 In June, two district nominees, from Michigan and Pennsylvania, were the first this Congress to receive blue slips from Democratic senators.5 6 The practice isn’t a formal rule, so the chair can change it at any time, but Whitehouse has been supportive of the practice in the past. We covered the blue slip tradition in multiple articles leading up to the election. We also broke down the judicial stakes in every competitive election except for South Carolina and Mississippi. Below is a breakdown of the district judgeships covered by the blue slip tradition for every Senate delegation. In total (657), 174 active district judgeships fall under a Republican delegation, 162 fall under a split delegation, and 321 fall under a Democratic one. Of the active district judges eligible for senior status or in the next six years, 76 judges fall under a Republican delegation, 80 fall under a split delegation, and 129 fall under a Democratic one.

For the remainder of this Congress (the “lame duck” period), Republicans will have the opportunity to push through as many nominees as possible. Of the 28 current and 15 future vacancies, there are 16 official nominees for them. Of the 16, three are for a circuit court. Republicans have 22 official days to confirm them.7 Many, if not most, of the nominees will likely be confirmed. There are three nominees awaiting a hearing, 10 awaiting a committee vote, and three awaiting a confirmation vote by the full Senate.

In 2027, every Trump nominee, from district court to the Supreme Court, will need Democratic cooperation, and not just at the blue-slip stage, marking the first time Democrats have held the Senate in either Trump term. With Justices Alito and Thomas being 76 and 78, respectively, the impact of a Democratic Senate will be felt in the judiciary for decades.

References

  1. “2026 Election Results: Live.” NPR, https://apps.npr.org/2026-election-results/. Accessed 5 Nov. 2026.[↩][↩][↩]
  2. Nesi, Ted. “RI Sens. Reed, Whitehouse Both Set to Chair Major Committees in 2027.” WPRI.Com, 5 Nov. 2026, https://www.wpri.com/news/politics-government/ri-sens-reed-whitehouse-both-set-to-chair-major-committees-in-2027/.[↩]
  3. Committee | United States Senate Committee on the Judiciary. https://www.judiciary.senate.gov/about/committee. Accessed 5 Nov. 2026.[↩]
  4. The Blue Slip Process for U.S. Circuit and District Court Nominations (1917-Present) (2026), https://www.congress.gov/crs-product/R44975.[↩]
  5. Reporter, Olivia Alafriz. Michigan Senators Give Trump Judge Pick Blue-State Support (2). 8 June 2026, https://news.bloomberglaw.com/us-law-week/michigan-senators-give-trump-blue-state-backing-for-judge-pick.[↩]
  6. Walker, Finch. “Fetterman Gives ‘blue Slip’ to Trump Judge Nominee in Pennsylvania.” USA TODAY, https://www.usatoday.com/story/news/politics/2026/06/09/fetterman-trump-judge-nominee-advance-pa/90457071007/. Accessed 5 Nov. 2026.[↩]
  7. https://www.senate.gov/[↩]