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November 14, 2024

With the incoming Trump Administration and Republican majority in the Senate, it is critical to use the next several weeks to confirm the highly qualified, fair-minded judges still pending before the Senate. As the first Trump Administration made perfectly clear, Trump won’t hesitate to stack our federal judiciary with extremists who will continue to chip away at our civil rights and freedoms. Like the first administration, we are likely to see far-right nominees who, among many other things, oppose abortion access and protections for workers. For instance:

  • All three Trump Supreme Court justices were part of the majority in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
  • Judge James Ho (5th Cir.) was part of the Fifth Circuit’s opinion that would have sharply curtailed access to mifepristone, the abortion pill. Ho also wrote a dissent in the case where he would have gone even further than the majority opinion in some respects.
  • Trump’s circuit court judges have repeatedly authored or joined anti-worker opinions, including cases which made it harder to file discrimination claims.  

Over the next four years, roughly 250 circuit and district court judges are, or will become, eligible for senior status. On top of the current and known future vacancies in states with two Republican Senators, there is every real chance that Trump will get to appoint another 200+ lower court judges. Not to mention the fact that, depending on retirements, he may also likely get to appoint at least 2 more Supreme Court Justices. There is a very real possibility in four years time that a majority of the justices and roughly half of all active lower court judges will be Trump appointees. 

In contrast to Trump’s prior nominees, as a whole, the nominees pending before the Senate are dedicated to protecting our rights and represent the types of diverse life experiences and professional expertise that will help strengthen our courts. We must confirm judges who will help protect our fundamental rights and serve as the last line of defense to uphold our nation’s laws and the Constitution.

Currently, there are 29 pending judicial nominations in the Senate. An overview of where they are in the process is as follows:

Senate Floor

  • There are 15 (4 circuit, 11 district) judicial nominees who have advanced out of the Senate Judiciary Committee.
    • Schumer has filed cloture on Embry Kidd (11th Cir.), setting up a potential cloture vote this week.
    • This leaves 14 nominees who will still need both a cloture vote and a confirmation vote.
      • This will require time and effort, especially since circuit court nominees still require 30 hours maximum of post-cloture consideration before a final vote can occur.

Senate Judiciary Committee

  • There are 7 (1 circuit, 6 district) judicial nominees who have had a Senate Judiciary hearing, but are still waiting for a committee vote who should be able to receive committee votes in the lame duck in time to be confirmed. 
    • This will likely require at least two mark-ups from the committee as committee norms require nominees be held over at their first mark-up.
    • Note: Only one additional nominee had a hearing but received a failed vote in committee.
  • There are an additional 6 (6 district) judicial nominees who still need both a Senate Judiciary hearing, and a committee vote.
    • Two of the five are from states with one Republican Senator and face blue slip challenges. Additionally, one other nominee has been pending since early February, but has yet to receive a hearing in over 10 months. 
    • This leaves 3 nominees ready to be scheduled for a hearing and committee votes and still advance to the floor.

The Senate must do whatever it takes to confirm as many judicial nominees as possible before the end of this Congress. The Senate must think creatively about how to confirm judges, whether that’s working nights or weekends or holding a large package vote. It is imperative Leader Schumer and Senate Democrats do everything within their power to confirm these judges before it is too late.