Biden and Schumer must surpass Trump and McConnell’s 234 confirmations—a necessary corrective to achieving justice in our federal courts.
It’s a bittersweet time to reflect on President Biden and Senate Majority Leader Schumer’s legacy for our federal courts.
On one hand, this administration and Senate majority are unrivaled in adding diversity to the federal bench. That includes demographic diversity like women (98), people of color (101), and LGBTQ+ people (9) and professional diversity like former public defenders (34) and civil rights attorneys (23).
On the other hand, Biden and Schumer are now falling behind Trump and McConnell’s pace of confirmations. Senate Republicans have weaponized procedures such as withholding blue slips and refusing to consult on vacancies, slowing nominations down considerably. Just as importantly, the diversity of the nominees has similarly declined.
This is happening at a time when it is increasingly apparent why circuit and district court judges are just so important. A single judge like Texas’ Matthew Kacsmaryk threatened access to mifepristone for the entire nation. This month, we saw a panel of three Trump judges uphold Idaho’s near-total ban on abortion. And the Fifth Circuit, which is easily the most conservative court in the country (thanks in part to six Trump judges), declared the Consumer Financial Protection Bureau unconstitutional—all because an association of pay-day lenders told them to.
This madness must stop and there’s only one obvious solution: more Biden judges.
There are 18 vacancies that can be filled immediately, including 15 district court seats in states with two Democratic senators.
As of this writing, there are 36 nominees to Article III lifetime judgeships pending in the Senate. Some are still awaiting their hearings, but 22 of them are simply waiting for the senators to all be in the same room to vote for them. Those are easy pickings for the Senate. They should be confirmed as soon as possible since there will still be plenty of work to be done.
Trump ended 2019 with 187 judicial confirmations. Biden has only made a total of 183 nominations through his third year in office, so he needs to name at least four more nominees if he has any hope of keeping pace with Trump.
Luckily for him, there are 18 vacancies that can be filled immediately, including 15 district court seats in states with two Democratic senators. Assuming Biden hurries, the Senate Judiciary Committee (which has been expertly led by Sen. Durbin and his staff) will be able to hold hearings and votes and then Leader Schumer can manage the floor to get the confirmations completed by year’s end. It’s a tight fit, but there’s plenty of opportunity—and time’s a-wastin’.
Historically, Republicans have wielded the blue slip to block numerous qualified, diverse nominees.
If the administration and Senate get through those nominations, then the really hard work begins. There are 41 other district court vacancies without a nominee in states with at least one Republican senator. If the blue slip remains in place, and the rules regarding its use unchanged, an individual Republican senator could veto any nominee named to most of the remaining seats.
That outcome is more than probable; it is certain. Historically, Republicans have wielded the blue slip to block numerous qualified, diverse nominees. With negotiations already playing out for some of these vacancies, that could well explain why it feels like the diversity of nominees is already deteriorating.
Senator Durbin has total discretion over how and when the blue slip is used and he has promised that he will not allow it to be used in a discriminatory manner. As vacancies grow throughout the South, we will soon be at a point to test that promise.
But first things first: Let’s confirm the president’s nominees and fill the vacancies where obstruction is impossible.
More than 200 confirmations would place Biden and Schumer ahead of Trump and McConnell entering the last year of the president’s first term. Moreover, it would set the stage for surpassing Trump and McConnell’s 234 confirmations, a necessary corrective to achieving justice in our federal courts. We can get there—if we get moving.
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