August 1, 2023
President Biden Has Fallen Behind His Predecessor on Judicial Confirmations
Vice President of Strategic Engagement
As of August 1, President Biden has fallen behind his predecessor on the number of federal court vacancies he has filled. President Biden has had 140 federal judges confirmed thus far, whereas former President Trump had had 144 judges confirmed by the end of July of his third year.
This lag is disappointing from a White House and Senate that have taken pride in exceeding the pace of judicial confirmation set by the previous administration. However, with 31 judicial nominees pending with the Senate, it is hard to blame the White House for this undesired milestone. President Biden falling behind Trump is predominantly the result of the Senate majority deprioritizing judges since November of last year. There remains an opportunity, albeit an up-hill one, for President Biden and the Senate to exceed the 187 judges that Trump had confirmed by the end of his third year, but it will require a much more concerted commitment by the Senate between now and the end of the year.
President Biden had 40 judges confirmed in 2021, 57 in 2022, and has had 43 confirmed thus far in 2023. If he and the Senate want to reclaim the lead in judicial confirmations this year, the Senate needs to confirm at least 47 more judges before the end of December. You read that right. The Senate will need to confirm more judges in four months than it did in the first seven months of the year, or in all of President Biden’s first year in office.
This uphill battle was both foreseeable and preventable. At the end of last year, Senate Majority Leader Schumer tweeted, “This Senate has confirmed 97 federal judges. That’s more than the first Congress in either of the two previous administrations.” While true, that 97 could have been much higher had the Senate better utilized the lame duck session to maximize confirmations. We at ACS urged the Senate to confirm at least 25 judges during the lame duck. Instead, the Senate only confirmed 13 judges.
There was another missed opportunity at the start of this year when the Senate did not confirm a single judge in the month of January. Much of the spring was hindered with attendance issues, which contributed to the Senate also not confirming a single judge in the month of April. However, the Senate majority has had full attendance since May and yet confirmed only six judges in June and four in July.
For months, we at ACS have been urging the Senate to expand its calendar to enable more time to confirm judges. As part of this, we urged the Senate to scrap its August recess, which would have provided the Senate with four more weeks to confirm judges. We’ve seen the Senate confirm as many as 12 judges in a week. A determined Senate could have used the month of August to confirm a significant chunk of the necessary 47 needed to exceed Trump by the end of the respective third year, certainly the 17 nominees currently pending on the Senate floor.
Instead, the Senate has opted to take its full August recess, leaving it with more nominees to confirm in less time when it returns after Labor Day. It is possible for the Senate to confirm 47 judges before the end of the year, but the Senate will need to consistently prioritize confirmations and use every tool in its toolbox, including:
- Expanding the calendar immediately upon returning in September. This means having the Senate in session Monday through Friday, and potentially on the weekends. The good news here is that the Senate majority controls when the Senate is in session.
- Amending the Senate rules to require only two hours of post-cloture debate time for circuit court nominees, akin to the two hours required for district court nominees.
- Amending the Senate rules to enable multiple nominees to be considered by the Senate simultaneously.
- Scrapping what remains of the blue slip tradition. During the previous administration, the GOP-controlled Senate Judiciary Committee eliminated blue slips for circuit court nominees. The current Senate majority should scrap the tradition for district court nominees, which enables individual Senators to effectively veto nominees for vacancies in their state. Scrapping blue slips does not in any way prevent the White House or the Senate Judiciary Committee from consulting with home state Senators about candidates for vacancies in their state. It simply prevents a single Senator from hijacking a vacancy.
The White House and Senate have already made history in the diversity of the judges they’ve put on the federal bench. President Biden’s 140 judges represent unprecedented racial and gender diversity, and many bring professional diversity to the bench. However, the total number of judges matters. Diversity is absolutely needed. Diversity and numbers are needed even more. If we are to achieve a judiciary that reflects the diversity of the public it serves, we need many, many more diverse judges.
The confirmation of diverse, qualified federal judges is one of the most impactful things this White House and Senate can do with a divided Congress. It is also one of the most long lasting with judges having life tenure and routinely staying on the bench for decades. Right now, there are 68 federal court vacancies and 22 future vacancies, for a combined 90 vacancies. The White House and Senate have an incredible opportunity to fill each and every one of those vacancies with a diverse, qualified judge who is committed to vindicating our fundamental rights, safeguarding democracy, and upholding the rule of law. The fate of those vacancies – whether they are filled or left empty – will be a lasting part of the legacy of this administration and this Senate.
Zack Gima is ACS Vice President of Strategic Engagement.