October 26, 2023

Now Is the Time To Prioritize Judges

The federal government is funded, for now. This may not be true for much longer, making these next couple of weeks a critical opportunity for the Senate to reprioritize judicial confirmations. To reprioritize judges means confirming more than the mere four who were confirmed during the past three weeks when the Senate was the only functioning chamber of Congress. It means making substantial progress in clearing the 26 judicial nominees awaiting floor votes.

For nearly two years, this Senate exemplified what it means to prioritize judicial confirmations. It helped President Biden appoint more judges in his first two years than any president in modern history and make historic progress in diversifying the federal bench. Since June, however, the Senate has noticeably deprioritized judges by confirming only six in June, four in July, zero in August, and only seven since it returned to session in September. As a result, President Biden fell behind his predecessor in the pace of judicial confirmations at the end of July and has only fallen further behind since.

The slow pace in recent months is not for a lack of nominees. There are 26 nominees awaiting floor rights right now. There were 17 awaiting floor votes when the Senate left DC at the end of July for its five-week August recess. And 11 of those 17 are still awaiting floor votes. Six of the 26 received strong bipartisan support out of the Senate Judiciary Committee, suggesting their confirmation votes on the floor should not be difficult. This makes it all the more confounding as to why we did not see a more concerted effort to confirm judges while the House was in turmoil or even now while the government is still funded.

None of us know what will happen in next year’s election. What we do know is that come this January, Senators will want to spend less time in DC and more time campaigning. It will become harder and harder as we near November 2024 for the Senate Judiciary Committee to achieve a quorum and to predict attendance in planning floor votes. This is why right now is such a critical opportunity for the Senate to prioritize judges.

President Biden is doing his part. The White House is consistently rolling out new nominations, including seven in September and five so far in October. The hold up is in the Senate, specifically on the Senate floor. The Senate majority controls the Senate calendar and what gets taken up on the floor and when. We have seen the Senate confirm as many as 12 judges in a week. At that pace, the Senate could readily confirm the 26 nominees pending on the floor before November 17th, when government funding is currently scheduled to run out. The Senate Majority Leader should extend the Senate calendar to maximize time for judicial confirmations during these next few weeks.

We know from recent history that any judicial vacancies left unfilled at the end of 2024 risk being filed by a future administration, including one that would prioritize appointing partisan extremists. We are currently and will be for decades paying the price of the dozens of vacancies left unfilled at the end of the Obama administration. During President Obama’s last two years, the Senate obstructed the filling of judicial vacancies. That is not the case right now. This Senate has demonstrated a commitment to confirming judges in the past and needs to do so again.

President Biden has appointed 147 judges to date. The previous administration confirmed 187 judges in its first three years and 234 in total. The Biden administration could match those numbers, but only if the Senate reprioritizes judicial confirmations now – and consistently prioritizes them going forward. The next couple of weeks will be telling.