January 26, 2023

Judicial Math

Russ Feingold President

Let’s talk numbers. To exceed the previous administration’s 234 confirmed judges, President Biden needs to have 138 more judges confirmed between now and the end of his first term. Most of 2024 will be consumed by the election cycle, with the Senate spending significantly less time in session. This means the Senate needs to confirm upwards of 100 nominees this year. The Senate confirmed 102 judges in Trump’s third year in office, so we know this is doable. That said, it will not be easy, particularly with the current vacancy map. Here is the judicial math:

There are currently 48 nominations pending in the Senate.

  • 8 circuit court nominees
  • 40 district court nominees

There are currently 113 known vacancies in the federal judiciary - 60 if you exclude the 48 which already have nominees and the 5 nominees who are intent to nominate or awaiting renomination.

  • Of those 60:
    • 3 are circuit court vacancies
    • 55 are district court vacancies
    • 2 are on the Court of International Trade
  • Of the 55 district court vacancies that do not currently have nominees:
    • 1 is in the District of Columbia
    • 15 are in states with 2 democratic Senators
    • 2 are in states with 1 republican and 1 democratic or independent Senator
    • 37 are in states with 2 republican Senators

What does this all mean? It means that as I write this, 39 vacancies could be subject to GOP obstruction by a Senator withholding their blue slip. Reminder, blue slips refer to an actual blue slip of paper that a home state Senator returns to the Senate Judiciary Committee to signal their support for a judicial nominee. If a blue slip is not returned, a home state senator is signaling their objection and can effectively block the nominee. This is not a Senate rule or requirement, but rather an antiquated tradition dating back to opposition to the enforcement of the Supreme Court’s Brown v. Board of Education decisions. It will be nearly impossible for the Senate to confirm over 100 judges this year if those 39 vacancies are blocked or obstructed by senators abusing the blue slip tradition.

As the saying goes, numbers don’t lie. This math presents a challenge to the Senate, which returned to session this week. The Senate Judiciary Committee held its first hearing of the 118th Congress this week as well. Now that the work is underway, the Senate cannot let up. Senators must maximize every single day they have in session to confirm judges, and they need to promptly do away with blue slips.

Blue Slips, Confirmation Process, Federal Courts, Judicial Nominations