United States: The White House is preparing for what could be President Joe Biden’s final opportunity to stamp his mark on the court, as progressives fear he will fall short of nominating as many judges as former President Donald Trump did during his four-year administration.
With a rematch between Biden and his Republican predecessor seeming increasingly likely in November 2024, Senate Democrats have pledged to focus on confirming Biden’s judicial candidates in 2024 and adding to the 166 already confirmed to sit on the bench.
After two years of matching or exceeding Trump’s judicial appointment pace, Biden’s rate dropped in 2023 as Senate Republicans exerted their authority and drove the White House to haggle with them over potential nominees.
The slower pace, according to Russ Feingold, a Democratic former US senator and leader of the liberal American Constitution Society, has jeopardized Biden’s ability to continue appointing diverse judges to the bench as an election loom that will determine whether he gets a second term and Democrats retain control of the Senate.
“Now we’re looking at a situation where if either the presidency switches or the Senate switches, most of this progress probably will be stopped or greatly stifled,” he said.
Significance
Biden has worked to fulfill a 2020 campaign vow to diversify the judiciary during his tenure, which has been dominated by white men who are either ex-prosecutors or former law firm partners.
He has repeatedly named civil rights lawyers and public defenders to the bench as Democrats seek to counterbalance Trump’s 234 judicial appointees’ conservative influence.
Prominent confirmed judges in 2023 included voting rights advocate Dale Ho, a federal judge in Manhattan, and Julie Rikelman, a former abortion rights attorney currently serving on the 1st U.S. Circuit Court of Appeals in Boston.
“All year long, this Senate majority has prioritized confirming judges who add to the bench’s personal and professional diversity, and we’re going to continue going into the new year,” Senate Majority Leader Chuck Schumer said on the Senate floor on Dec. 11.
However, while the Senate confirmed 69 judges in 2023, that number was lower than the speed of confirmations during Trump’s third year, when 102 were confirmed.
For several months, the Senate Judiciary Committee struggled to process nominees in the absence of a sick panel member, Democratic Senator Dianne Feinstein, who died in September.
WHAT IT MEANS FOR 2024
Biden could compensate for the slowdown in 2024. He has named 30 other nominees who have yet to be confirmed. There are currently 53 vacancies on the federal court awaiting a nominee, with more coming.
However, 22 vacancies are in areas with one or two Republican senators, who, according to a Senate tradition known as the “blue slip,” can essentially veto nominees from the states they disapprove of and keep seats open for a prospective Republican president.
“There’s plenty of vacancies, but will he be able to nominate in red states?” said Russell Wheeler, a visiting fellow at the Brookings Institution who tracks judicial nominations. “That’s the big question.”
Progressive groups have encouraged Senator Dick Durbin, the current Democratic chairman of the Judiciary Committee from Illinois, to discontinue the “blue slip” practice, which they claim has hampered Biden’s ability to nominate justices in conservative-leaning states and much of the South.
According to Leah Litman, a University of Michigan Law School professor who co-hosts the leftist legal podcast “Strict Scrutiny,” Biden’s inability to appoint judges in those states will allow Republican politicians to “do whatever it is they want” without fear of courts overturning laws they pass.
She cited Texas, where Trump was able to fill many openings with conservative justices who have frequently supported challenges to Biden’s policies. One, U.S. District Judge Matthew Kacsmaryk in Amarillo, temporarily halted the approval of the abortion drug mifepristone. It is still available pending review by the United States Supreme Court.
Durbin has recognized that “some judicial vacancies in states with Republican senators have languished for months on end,” but he has stuck to tradition and urged Republicans to show they can work with the White House.
The White House has recently highlighted victories on this front, with district court justices from Indiana, Idaho, and Louisiana confirmed in 2023 and recent nominations from Florida, South Carolina, and Texas awaiting.