August 17, 2023

Preserving the Rule of Law and Pushing for More Judges

Russ Feingold President

This week brought the fourth indictment of former President Trump and the second for events related to the attempted overthrow of our democracy. As we stated earlier this week, the indictment by the Fulton County District Attorney’s Office is another critical step in ensuring accountability for the attempted subversion of the 2020 presidential election and in safeguarding future elections.

We at ACS applaud the fact-driven and thorough investigations that have been conducted and those that may still be underway by federal, state, and local officials into the efforts to subvert the 2020 presidential election. These investigations and the indictments that have already resulted from them are not about party or politics. They are about preserving the rule of law and ensuring that it bends for no person, regardless of their title, their wealth, or their political pursuits.

Separately, the Senate may be on recess this month, but we are not taking a break in pressuring the White House and Senators to reprioritize judicial confirmations. It is a shame that President Biden fell behind his predecessor on judicial confirmations as of the end of last month. President Biden has had 140 judges confirmed, compared to the 144 that Trump had had confirmed by the end of July of his third year and 146 by the end of August of his third year.

It is a shame because it was preventable. The Senate confirmed only six judges in June and four in July. Senators departed Washington at the end of July with 17 judicial nominees on the floor awaiting confirmation votes. The Senate, had it made judges a priority, could have confirmed more than 10 judges in June and July, or could have scrapped or at least reduced its August recess to confirm more judges. Instead, the Senate will return to session in September with an uphill challenge if it wants President Biden to exceed Trump’s 187 confirmed judges by the end of his third year and 234 by the end of his first term.

The White House continues to roll out judicial nominees and has vowed to keep doing so. This is encouraging because it will need to announce at least 16 more nominees this year to enable the Senate to meet Trump’s 187 confirmed judges by the end of 2023.  We are optimistic the White House will do this and are encouraging them to also recommit to prioritizing professional diversity with its nominees. Overall, President Biden has already made history in the diversity of his judges. So far, more than 67 percent of his confirmed judges have been women and nearly 67 percent have been people of color. This is compared to just 24 percent of Trump’s judges being women and less than 16 percent being people of color. President Biden prioritized professional diversity in his first two years, but we’ve seen a decline in recent tranches of nominees.

Twenty-six percent of President Biden’s first 100 judicial nominees brought civil rights or plaintiffs rights experience to the bench compared to just 17 percent of the subsequent 76 judicial nominees . Twenty-seven percent of Biden’s first 100 nominees were former public defenders, compared to just twelve percent since. On the flip side, just twenty-four percent of the first 100 had experience as prosecutors (a background that is overrepresented on the bench), compared to fifty percent since. To diversify the federal bench, we need many more diverse judges, and this includes demographics and professional diversity.

Every day seems to bring more proof of the profound impact that judges are having on our lives, our rights, and our democracy. We will continue to say it, whatever policy issue you care most about or that a Senator cares most about, judges have a direct impact on that issue. One of the most consequential ways that the Senate can advance reproductive rights, protect LGBTQ+ rights, and safeguard democracy in this divided Congress is by confirming diverse, qualified judges.