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Democrats scramble to confirm Biden judicial nominees ahead of November

But the committee will also send several other candidates for federal judgeship to the Senate, as Democrats scramble to keep the judicial confirmation mechanism running while Jackson dominated the spotlight.

Since Justice Stephen Breyer announced his retirement in late January, the Senate has confirmed 16 lower court justices — all while Democrats managed the high-stakes and resource-intensive Supreme Court nomination process. Two district court judges, confirmed by the Senate on Thursday, brought the total number of President Joe Biden’s appointees to the federal bench to 58.
“Senate Democrats are proud of this record and we will maintain it,” Majority Leader Chuck Schumer, a New York Democrat, told reporters last week. “It’s one of the most important things we can do.”

Democrats surpassed the number of justices former President Donald Trump had confirmed at an equivalent point in his presidency, though they currently do not match his Supreme Court footprint, with Jackson’s confirmation not changing the fundamental conservative inclination of this court.

With Democrats at risk of losing the gavel to the Senate midterm in November, Biden may also miss Trump’s four-year advantage of a same-party-controlled Senate – adding pressure to the push to bench Biden appointees.

There are 108 current or anticipated vacancies in the lower courts, including 84 vacancies for which no candidate has yet been nominated.

The general time crunch is further complicated by procedural tactics Republicans can use to slow a candidate’s path to confirmation, in addition to a Senate standard Democrats currently follow that gives senators veto power. on applicants for district court in their state. Any delays on the White House side in sending Senate nominees could still put Biden on the right track.

“They have to move now. [As] Justice Ketanji Brown Jackson becomes Justice Ketanji Brown Jackson, Senate Democrats, White House must work hand in hand,” said Rakim Brooks, president of the progressive legal advocacy group Alliance for Justice. than any president has done, but this is a historic opportunity to reshape the courts and it should not be missed.”

Democrats started the Biden administration by focusing on replicating Trump’s success in confirming judges, leaving almost no openings on the appellate bench.

“They filled all the vacancies and we need to fill all the vacancies,” Sen. Mazie Hirono, a Democrat from Hawaii, told CNN.

Republicans are using procedural hurdles to slow things down

Filling vacancies is easier said than done, as several things need to come together for applicants to move forward quickly. And Democrats face several types of maneuvers Republicans can use to slow down the process.

All 58 confirmed judicial nominees so far have requested closing votes – a step in the floor voting process that the A minority in the Senate can demand and one can add to the speaking time given to a candidate before their final confirmation vote.

“In the past, half of them went by voice vote. And the Republicans — they just want to delay things,” Vermont Sen. Patrick Leahy said.

Democrats scramble to confirm Biden judicial nominees ahead of November
(Democrats also embraced the use of cloister votes on the executive branch and judicial nominees under Trump; while he was president, there were some 200 cloister votes on judicial nominees.)

But even before the nominees hit the ground, other things can get in the way of their confirmation. If the Judiciary Committee — which is evenly split between Democrats and Republicans — freezes on approving a nominee, that adds an additional procedural maneuver on the floor, known as a discharge petition, to move the case forward. appointment to the full Senate.

There is currently five Biden justice nominees who failed to win GOP support on the committee and will need discharge requests to be confirmed. It’s unclear if Democrats have the votes to do so at this point.

And for district court nominees to even pass through the committee, senators from their home state must return what are known as “blue slips” for their nominations to be accepted. For seats in states where both senators are Democrats, this step is usually not a problem. Unsurprisingly, most of the confirmation effort so far has focused on vacancies or other vacancies for which blue slips are not required. But already one Biden nominee has been derailed by a blue slip, after Wisconsin Republican Senator Ron Johnson refused to return a blue slip to William Pocan, a state court judge whom Johnson had recommended Biden for the seat. .

“There are still a lot of vacancies in the blue state,” a Democratic committee aide, who asked not to be named to speak candidly, told CNN. “You could probably fill the hearings with blue states or jurisdictions that don’t require blue slips at all, but of course we’re hoping we’ll have a mix of applicants from blue state, purple state, of the Red State, etc.”

Three Biden nominations to the Ohio federal bench were confirmed in February after being recommended to the White House by Republican Ohio Sen. Rob Portman and Democratic Sen. Sherrod Brown. Of the current and projected vacancies for which candidates have not been nominated, more than two dozen openings are for seats where at least one of the senators is Republican.

But Johnson’s reversal of a candidate he once backed is another data point cited by left-wing groups calling on Democrats to reconsider the blue slip process, which had already been reversed for appealing candidates when Republicans controlled the Senate.

“It doesn’t pass the straight face test,” Demand Justice chief counsel Chris Kang said of Johnson blocking a candidate he originally recommended.

Balancing a fight for the Supreme Court nomination with continued pressure from lower courts

Democrats say they’re happy with the way they’ve juggled those different factors in recent months while keeping Jackson’s Supreme Court confirmation within the swift deadline they set for filing Breyer’s seat.

The Judiciary Committee has not strayed too far from its usual schedule of holding nominating hearings every two weeks during the Senate session. Since Breyer announced his retirement, nearly a dozen judicial nominees have testified before the committee. Preparing these nominees for these hearings was work the White House had to do as it ushered Jackson through the Supreme Court vetting and nomination process.

The committee, also during this period, held votes to move 10 nominees from Biden’s lower court upstairs. Many of them have already been confirmed or should be in the next few days.

When the committee votes on Jackson, it will also vote on the appeal nomination of Judge Stephanie Davis, who, if confirmed, would be Michigan’s first black woman to serve on the 6th U.S. Circuit Court of Appeals. Arianna Freeman, a Third Circuit nominee who has faced heavy criticism from Republicans for her work as a federal public defender, is also up for a committee vote on Monday, as are three court nominees of the Federal District.

Meanwhile, six of the nominees previously advanced off the committee are already on the Senate executive calendar, putting them in line for a floor vote.

Even with this strong pace, it is not clear that Biden will fill all of the vacancies currently open in the federal bench this year.

The Judiciary Committee aide told CNN the committee aims to hold nomination hearings every two weeks when the Senate is in session in the spring and summer – before the August recess – and in the fall, before the midterm break the Senate takes. . The White House, for its part, hopes to come up with new nominees at a pace that ensures every seat at those nominating hearings — where typically five or six nominees testify — is filled.

“My view is as broad as possible, as soon as possible, because we need to fill these positions for the good of the American people,” said Sen. Richard Blumenthal, a Democrat from Connecticut. “Aside from mid-term reviews, these positions need to be filled as there are backlogs in most of our courts.

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