While Democrats’ prospects in the House look increasingly grim, projections suggest there’s still a chance they could keep the Senate.
And while a split Congress would probably be less productive than the one that’s been under unified control for the last two years, there’s one big reason keeping the upper chamber is still extremely important: the courts.
If elected, a Democratic Senate would be able to confirm more of President Joe Biden’s judicial nominees, including any upcoming theoretical Supreme Court pick. Even without the House, they could approve judges for district courts, circuit courts, and the high court with a simple Senate majority.
And that’s not the only benefit: Keeping this majority would also mean that lawmakers could set their own floor agenda and reject bills approved by a GOP-led House. Democrats would have more leverage on must-pass bills like government funding and increases to the debt ceiling, which Republicans would otherwise be able to weaponize against Biden. Plus, Senate Democrats could ensure that hearings and committee time aren’t used on investigations of Biden and other members of his administration.
“Given that it will be investigations on steroids over in the House, the question is how the Senate could serve as a buffer,” says Democratic strategist Jim Manley, a former staffer for former Senate Majority Leader Harry Reid.
Securing that buffer won’t be easy as the prospects for Democrats this fall are looking increasingly dismal. Due to the backlash the president’s party typically faces, and other factors like the country’s ongoing struggles with inflation, Democrats are likely to see some major losses in the House and have no room for error in the Senate. Because of the 2022 Senate map and candidates’ past patterns of bucking national trends, however, Democrats have a slightly better chance of sustaining their narrow hold on the upper chamber. (FiveThirtyEight currently gives them a 50-50 chance to do so.)
Three reasons Senate control matters
Democrats would be pretty limited legislatively under divided government — but there are still three key areas where Senate control matters.
Judges
“The main difference between a split Congress and one controlled by Republicans completely would be Biden’s ability to fill judicial and other vacancies,” says Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia.
A GOP Senate majority would be able to vote down Biden’s judicial nominees (including any that come up on the Supreme Court), block them wholesale from consideration, and pressure the White House to pick what they perceive as more moderate options.
Republican lawmakers have already signaled that they may not consider Biden’s nominees. In April, Senate Minority Leader Mitch McConnell wouldn’t commit to giving a Supreme Court pick a hearing in 2023 if the Republicans retook their majority. It’s something he’s done before: During the Obama administration, McConnell notably blocked Supreme Court nominee Merrick Garland from ever getting a hearing by arguing that his nomination was in an election year.
Sen. Lindsey Graham (R-SC) has said that the “Garland rule” could be used if a high court vacancy comes up in 2024.
Such opposition could seriously stymie Biden’s efforts on the courts: In his first year, Biden appointed the most federal judges of any president since Ronald Reagan, including more women, more people of color, and more public defenders than his predecessors. His attempts to continue doing so would be severely constrained without a Democratic Senate majority.
Since these judges have lifetime appointments, their appointments have long-term impacts that extend far beyond the administration that nominated them. Trump and a Republican-controlled Senate confirmed more than 200 judges during his presidency, many of whom have contributed to pivotal decisions on immigration policy, mask mandates, and abortion rights.
Setting legislative priorities
In the majority, Democrats would be able to set the floor schedule and ignore bills that Republicans send over from the House. “It’s crucial to keep the Senate if only to serve as a bulwark against every bad idea that House Republicans are going to think of when they try to send them over to the Senate,” said Manley.
If Republicans had Senate control, any bills that passed both chambers could still be vetoed by Biden. In the process, however, they could force vulnerable Democrats to take difficult votes on contentious issues.
Similarly, Republicans could use tools like the Congressional Review Act and budget resolutions for messaging votes. Using the CRA, lawmakers could try to undo rules recently imposed by the Biden administration. If a simple majority in both chambers disapproves of a rule, they can pass a resolution trying to repeal it. Biden could also veto this, but Democrats would be pushed to take tough votes on the administration’s policies in the interim.
Budget resolutions also only require a simple majority to pass the Senate and could be another forum for Republicans to score political points. Using these resolutions, which are also subject to a presidential veto, they could approve changes to the tax code or spending on climate programs and reproductive health.
Investigations
Republicans have already vowed to serve as a check on the Biden administration once they retake the majority in either chamber. House Republicans, for example, have announced plans to investigate the business practices of the president’s son Hunter Biden, and even pursue impeachment of certain Cabinet members.
“Immediately, the House Republicans are going to start investigating the White House and the administration, basically looking for anything to embarrass the administration as much as they can,” says Neilan Chaturvedi, a political science professor at Cal Poly Pomona.
While a GOP-controlled House would be able to dedicate time and resources to these efforts, a Democrat-controlled Senate could make sure that their chamber’s committees didn’t focus hearings on these issues. Additionally, the Senate could attempt to avoid a trial if the House approves articles of impeachment for an administration official.
“The House could go ahead and vote to impeach, but there is some ambiguity about whether or not the Senate is compelled to hold a trial,” said George Washington University political science professor Sarah Binder.
Democrats’ 2022 wins could decide control of the Senate for years
Democratic wins this cycle would also cushion potential losses the party could experience in the next election. Since senators hold six-year terms, anyone elected in 2022 would play a major role in preserving the party’s numbers for Congressional terms to come.
“I think it matters more down the line because Democrats are staring at a really brutal map in 2024,” says Cook Political Report’s Jessica Taylor.
As Vox’s Andrew Prokop has explained, Democrats aren’t currently defending any seats in states that Trump took in 2020. The four most contentious Democratic seats that are up — Nevada, Georgia, New Hampshire, and Arizona — are all places Biden won. Two other swing seats currently held by Republicans — Pennsylvania and Wisconsin — are also places Biden previously won, putting them in Democrats’ potential reach.
The 2024 map, however, is far more challenging. That year, Democrats will be defending Sen. Joe Manchin’s seat in West Virginia, Sen. Jon Tester’s seat in Montana, and Sen. Sherrod Brown’s seat in Ohio, all states that voted for Trump in the last election. Additionally, several other Democrat-held seats will be up in states like Arizona, Michigan, and Maine.
Essentially, the more seats Democrats can win in 2022, the better position they’ll have to withstand any shake-ups two years from now.
Update, November 3: This story was originally published on May 2 and has been updated to reflect new polling information.
Li Zhou
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