Bloomberg Law
Biden Judiciary Goals Tested by Senate Agenda, GOP Cooperation
By Tiana Headley, Reporter
Progressives are frustrated with the pace of judicial confirmations and how few trial court nominations are getting announced from states with Republican senators.
The Democratic-led Senate has confirmed seven of President Joe Biden’s judicial nominees since the August recess amid a focus on other priorities, leaving another 23 awaiting floor votes.
More problematic as the election year approaches is that 83% of three dozen trial court vacancies without a pending nominee are in red states, or those represented in the Senate by two Republicans. Since trial court nominees still require home-state sign off, Republicans could slow walk talks with the White House or refuse to cooperate.
“Some of these are instances where they really don’t have an incentive to push a nominee through because what they’re really hoping for is that Biden isn’t going to be president,” said Amy Steigerwalt, a political science professor at Georgia State University who studies judicial nominations.
Full Plate
Since Labor Day, Senate leadership has mostly prioritized other executive branch and top military nominations, along with government funding bills.
“If you’re spending time on the floor dealing with the appropriations bill, you then cannot be spending time on the floor, assessing a nomination and vice versa,” Steigerwalt said. “We no longer have the reality we used to, which is where the overwhelming number of lower court nominees were confirmed by voice vote without anybody really paying them attention.”
The Senate confirmed three judges in September and five in October, including Matthew Maddox for a trial court seat in Maryland on Tuesday. Progressive groups say they recognize Democrats are juggling a tall order of priorities, but they must strike the right balance to keep confirming judges.
A series of health-related lawmaker absences this year complicated matters for Democrats and Biden, who so far has appointed more than 140 judges. But advocates say there have been missed opportunities for the Democratic majority to flex its power to alter Senate practices and ensure all the chamber’s priorities are given appropriate attention.
The American Constitution Society, a liberal lawyer group, has called on Democrats to allow more than one nominee to be voted on at once and to shorten the time between a vote to invoke cloture, or end debate on a circuit nominee, and their confirmation vote. The time between those votes is now 30 hours.
Senators also need “to stay in longer, and stay later, as they have other important priorities and these critical judicial nominations that they need to put in the time for,” said Rebecca Buckwalter-Poza, senior counsel at Alliance for Justice. That could mean trimming recess periods, an unwelcome prospect for senators facing tough reelection bids.
Year End Strategy
The pace of judicial floor votes ebbs and flows throughout the year under all administrations, with Trump nominees confirmed at a similar rate to Biden’s nominees toward the end of his third year, said Russell Wheeler, a Brookings Institution fellow who writes about judicial nominations.
Voting on a slew of nominees weeks or days before year’s end, whether by voice vote or roll calls, is a common practice to clear backlogs on the floor.
Senate Majority Leader Chuck Schumer (D-N.Y.) “may surprise us all,” said Russ Feingold, a former Wisconsin Democratic senator and now president of The American Constitution Society. “I’ve seen Senator Schumer really move on things when he wants to. So I want to give him a chance to do that.”
In a statement, Schumer spokesman Alex Nguyen said, “Recently we’ve had to also work to confirm other important nominees and pass legislation to fund the government. Judicial confirmations are a top priority and we will continue to push to fill more judicial vacancies.”
Limited Success
The bigger challenge for the White House is getting vacancies filled in GOP-led states. In addition to the 30 current trial court vacancies without pending nominees in states with two Republican senators, another two are in states with one Republican senator and an additional eight of 21 future district court vacancies, those in which a sitting judge plans to step back but hasn’t done so yet, are in red states.
An additional 10 future vacancies are in blue states and three are in purple states, Maine, Montana, and Ohio. One remaining vacancy is in the nation’s capital.
Only three red state trial court judges have been confirmed this year and five more are pending.
The crux of the challenge is getting Republican senators to return the “blue slip,” the form used to convey support for nominees that can also be used to block their path.
Republicans returned blue slips for all seven district court picks nominated in their states this year, excluding one withdrawn nominee. A refusal by Sen. Cindy Hyde-Smith (R-Miss.) to sign off on Scott Colom, who was renominated in 2023 to a trial court seat in her state, has left that nomination in limbo.
“Until there’s some real reconciliation with the blue slip courtesy, there’s a real chance that a lot of those states will have courts that are overwhelmed and overworked because vacancies remain unfilled,” said Tristin Brown, policy and program director at People’s Parity Project, which pushes for a more diverse judiciary, in an email.
The White House didn’t respond to requests for comment.
2024 Politics
The final year of Biden’s first term will bring more challenges for keeping senators in session and filling red state vacancies.
Several Democratic senators face stiff competition in 2024, with many facing pressure to fundraise or campaign in their home states. That makes it more likely the Senate meets less frequently next year, cutting the amount of floor time to schedule votes on nominees.
The prospect of a Republican in the White House and a Republican Senate majority in January 2025 could dampen any good will among GOP lawmakers to fill the courts with more Biden-appointed judges, Steigerwalt said.
“The process is time consuming. It has only grown more time consuming in recent years. And part of what is going on is that the minority party senators have very little incentive to want to help the majority party speed this up,” she said.
—With assistance from Zach C. Cohen