The Path Forward for President Biden’s Judicial Nominees
TO: Interested Parties
FROM: Christopher Kang, Demand Justice Chief Counsel
RE: The path forward for President Biden’s judicial nominees
DATE: November 15, 2022
In under two years in office, President Biden has already made changing the face of the judiciary one of his most impressive accomplishments. His administration has redefined the qualifications Democrats look for when picking federal judges, putting forward a record-breaking proportion of professionally diverse lawyers with experience as public defenders, union-side labor lawyers, and civil rights lawyers, all while setting new records for racial and gender diversity.
Now, with Democrats set to control the Senate for two more years, the administration and Senate Democrats should set an ambitious new goal: balance President Trump’s impact on our circuit and district courts. President Trump set a modern record for the most circuit judges (54) and most district judges (174) confirmed in a single presidential term. President Biden can surpass this, but only if Senate Democrats confront Republicans’ procedural obstruction, and only if active judges seize the opportunity to create more vacancies.
Especially in light of the possibility that Democrats will not be able to advance a robust legislative agenda if Republicans control the House, President Biden and Senate Democrats may have an opportunity to maximize Senate floor time to make a dramatic mark on the judiciary in the next two years. This memo outlines what it would take for them to get it done.
FINISHING STRONG IN 2022
Maximizing the impact of President Biden’s first term in office starts with finishing 2022 by confirming as many of President Biden’s nominees as possible. There are currently 57 pending nominations, and 43 will have received Judiciary Committee votes by December 8th. Senate Democrats should aim to confirm as many of these judges as possible this Congress.
With the time available, Senate Democrats should prioritize nominees who have been waiting the longest and who will do the most to bring professional diversity to the courts. On average, President Biden’s district judges have waited 128 days from nomination to confirmation, but his seven longest-pending district nominees–all from professionally diverse backgrounds–have been waiting an average of 343 days. This includes voting rights expert Dale Ho and former Public Counsel CEO Hernán Vera, who have been waiting more than 400 days–more than three times longer than average. Among circuit nominees, civil rights lawyer Nancy Abudu was nominated more than 300 days ago, which is well in excess of the average time to confirmation for other Biden circuit judges (126 days). All of these nominees should be promptly confirmed.
REFORMING DISTRICT COURT BLUE SLIPS IN THE NEW CONGRESS
President Biden’s number of judicial confirmations matches Trump’s number so far, but continuing to match Trump’s record will require reforming the so-called ”blue slip rule” for district nominees. Blue slips are not required by rule. They are a courtesy, granted by the Chair of the Judiciary Committee, that have been weaponized by segregationists and allow any senator to unilaterally veto a nominee to a district court in his or her home state.
Republicans have already made clear that they will use blue slips in bad faith to impede President Biden’s nominees. In Wisconsin, Senator Ron Johnson has even withheld his blue slip to block a Biden pick he initially recommended. Such blue slip abuse is part of the broader asymmetry between the Democratic and Republican approaches. At this point in the Trump administration, there were 61 district vacancies in states with two Democratic Senators, and he had made 26 nominations (42%), with seven judges already confirmed. In sharp contrast, President Biden has had 37 district vacancies in states with two Republican senators but has been able to make only two nominations (5%), with one confirmation.
Senate Democrats need to stop considering blue slips through the lens of their own greater willingness to reach compromise with Republican presidents and instead respond to any Republican abuse. Without reform in the new Congress, Republicans could prevent President Biden from matching Trump’s record of 174 district confirmations simply by withholding their blue slips. President Biden has 59 district confirmations so far; another 61 vacancies have been announced that do not require a Republican blue slip (those in states with two Democratic senators, the District of Columbia, and Puerto Rico); and five pending district nominees have already received Republican blue slips. If the Senate fills all of these vacancies, that would be 125 confirmations – still 50 short of passing Trump. While active district judges will continue to create new vacancies, there are just 40 more Democratic-appointed district judges who will be senior status-eligible in President Biden’s first term whose replacements will not require Republican blue slips. To match Trump’s record, President Biden needs to be able to fill the 36 already-existing vacancies in Republican states.
Stanford Law Professor Mark Lemley has documented that our federal judiciary is “increasingly fragmented into red courts and blue courts,” which is “corrosive to the perception of the rule of law.” Continuing to leave district court blue slips in place will further undermine our courts and our system of justice. Americans who live in red states, including substantial communities of color in southern states, are no less deserving of a diverse, representative judiciary.
During the George W. Bush and Trump administrations, Republican Judiciary Chairs bypassed blue slips nearly two dozen times. President Trump’s impact on the courts advanced significantly by eliminating the blue slip for circuit courts first, as Republicans confirmed 17 Trump circuit judges over the objection of Democratic home-state senators, compared to Democrats confirming just two Biden circuit nominees without blue slips so far. While Democrats reinstated blue slips during the Obama administration, Chair Durbin has been right to follow the Republican model and not require them for President Biden’s circuit nominees. He must now act boldly to reform the blue-slip process for district courts as well.
ACTION NEEDED FROM FEDERAL JUDGES
Senate Democrats are not the only ones who must act to allow President Biden to maximize his impact on our courts. There were 49 announced circuit and district court vacancies when President Biden took office, but that number more than doubled within three months, thanks to judges announcing plans to retire or take senior status. Over the past six months, these announcements have slowed to a trickle, as judges likely have been reluctant to create vacancies that a Republican Senate would have stopped from being filled. Now that Democrats have been projected to continue controlling the Senate, judges eligible to take senior status should announce their intent to do so without delay.
Judges taking senior status and creating additional vacancies are especially critical for President Biden’s ability to match Trump’s record of 54 circuit confirmations. So far, President Biden has made 37 circuit nominations (with 25 already confirmed), and there are just four additional announced vacancies. Fortunately, there are 45 circuit judges eligible to take senior status before the end of his first term, including 17 appointed by Presidents Clinton or Obama. They should do so without delay.
The need for more judges to take senior status also underscores the need for Senate Democrats to move decisively and show they are willing to do whatever it takes to confirm as many judges as possible. There are 73 more district judges who are or will be senior status-eligible during President Biden’s first term but whose successors could be blocked by Republican blue slips. This includes 35 district judges appointed by Presidents Clinton or Obama who likely will delay taking senior status at least until they understand that President Biden will have a meaningful chance to fill their vacancies.
CONTINUED FOCUS ON PROFESSIONAL DIVERSITY
Balancing President Trump’s impact on our circuit and district courts will require not only matching the number of confirmed judges but also continuing President Biden’s emphasis on professional diversity–one of the most important aspects of his judicial legacy so far. As Justice Ketanji Brown Jackson’s confirmation hearings illustrated for a national audience, lawyers who have worked as public defenders and in other roles on behalf of individuals are often underrepresented on our federal benches and bring critical insight and balance to a system dominated for too long by corporate lawyers and prosecutors. Many Senate Democrats have worked with President Biden on this project, though others still need to increase the emphasis they place on professional diversity in their recommendations. Federal courts in states with Republican senators also need greater professional diversity, through blue slip reform where necessary.
In the new Congress, the Biden administration should aim to keep raising the bar, maintaining a commitment to professional diversity everywhere, while continuing to rewrite the record books in the appointment of women, judges of color, and LGBTQ+ judges.