President Biden and the Democrats, largely stymied by Republicans from implementing their policy agenda, have turned the Senate into a judicial confirmation factory that just passed a major milestone in its push to remake the federal courts, by passing the 100th district court candidate since Biden took office.
The pace of the effort has surpassed that set by Republicans when they pushed to remodel the courthouses during the administration of former President Donald J. Trump, putting the Biden administration’s 20 district court candidates ahead of the Trump team at the same point in the his mandate.
“These judges will affect America long after most of the senators are out of here,” said Senator Chuck Schumer, the New York Democrat and Majority Leader, who has had a longstanding interest in judicial confirmations . “It is extremely important. It’s a gradual process. It’s difficult. »
Despite being slowed by absences and resistance from Republicans who consider some Biden candidates unacceptable, the Democratic-led Senate hit the 100 mark last week in a 50-to-49 vote to confirm Natasha Merle in a seat in New York’s Eastern District . She was among a string of newly confirmed justices with civil rights expertise whose nominations had been slow to reach the public given concerted Republican opposition.
Although district court judges were often previously confirmed by voice votes, the struggle over candidates’ ideological leanings means nearly everyone is forced to navigate between two votes. And there’s little margin for error given the slim 51-to-49 margin in the Senate Democratic caucus and the occasional defections from the Democratic side of Sen. Joe Manchin III of West Virginia. Both sides have placed a great emphasis on filling vacancies given the growing role federal courts play in setting policy and deciding politically charged cultural issues.
Despite the judicial tally, some progressives are still scrambling for Senate Democrats to do more to try to match the confirmation successes of Trump and Sen. Mitch McConnell, a Kentucky Republican and minority leader.
Some are urging Democrats to forgo the planned August recess and stay in session to confirm judges, and also to be more aggressive in appointing and confirming district court judges in states with Republican senators. There are more than 40 vacancies with no candidates and the potential for dozens more if eligible justices retire.
Without such a push, Biden risks falling behind his predecessor by the end of the year, they say.
« That’s a good thing so far, » said Russ Feingold, a former Democratic senator from Wisconsin who now heads the American Constitution Society. “It would be a real shame not to continue that work aggressively into the next year, year and a half. We believe the Senate needs to expand the calendar. »
Mr. Feingold noted that some of the newer justices had to wait nearly two years for their nominations to be brought to the floor and suggested Democrats were being too cautious.
« It really underscores the need for the Senate to pick up the pace overall, » Feingold said. “Waiting helps no one”.
Despite pressure from the left, Democrats in the Senate are very unlikely to reverse their recess in a hurry to confirm more justices. They say it would probably be futile as some senators would choose not to participate and Republicans could create new procedural hurdles.
Senator Richard J. Durbin, the Democrat from Illinois who is the chairman of the Judiciary Committee, rejected Mr. Feingold’s criticisms.
« He knows best, » said Mr. Durbin. « He served on the committee. »
Republicans note that Democrats still lag behind the Trump era when it comes to judges appointed to appellate courts, with 35 so far for Biden compared to 41 for Trump, who had also been able to fill two vacancies at the Supreme Court this point of his term, while Mr. Biden has filled one.
Republicans say the circuit courts — the level between the district courts, where trials are held, and the Supreme Court — are far more influential than the lower courts when it comes to resolving questions of federal power and social policy. They also point out that Democrats benefited from a Republican-led rule change in 2019 that substantially reduced the Senate sitting time it takes to get a district court candidate confirmed.
But Democrats say the importance of district court judges has recently been underscored by decisions at that level by Trump-appointed judges on issues like Covid-19 rules, abortion, and even the former president’s own criminal case. They are eager to bench their candidates with experience in civil rights and criminal defense.
“Trump has put in so many awful right-wing judges,” Mr. Schumer said. « People in the Supreme Court are obvious, but it’s even worse in most circuits. »
The big test for Democrats in the White House and Senate will come when they run out of slots in states represented by Democratic senators and face the prospect of not being able to fill District Court vacancies in states with Republican senators, which can kill a nomination by denying a « blue ballot » in accordance with a Senate tradition that gives senators a say in the selection of their home states’ justices.
Democrats have made progress in finding consensus candidates with Republican senators, but it has been slow — and not all Republicans are willing to consider candidates for the Biden administration, which means dozens of vacancies could be left. vacant at the end of 2024.
Progressive advocacy groups want Democrats to ditch the blue slips and veto power that comes with them.
« We need to get rid of the blue slips instead of waiting to see what happens, » said Mr Feingold. « It may be too late. »
But Democrats said the move could spark a procedural war that would slow down the nomination process. They note that two dozen more candidates are in the pipeline and say they will consider next steps once these people are confirmed. Overall, Mr. Biden has installed 136 justices, compared to Trump’s 123 at this point, though Trump finished his third year with 187 confirmations and his tenure with 234, according to Feingold’s team.
« I’m very happy with the pace we’re going at, » said Schumer, who noted that Democrats have also scored some legislative victories in pushing nominations. “I will continue to do it. Our goal is to surpass even what Trump did. »
