September 5, 2023

The Senate Needs to Reprioritize Judges

Russ Feingold President

After setting an impressive pace for nearly two years, President Biden has fallen behind his predecessor on judicial confirmations. The White House largely has the Senate to blame, which confirmed only six judges in June, four in July, and zero in August when the Senate was on recess. When Senators return to Washington this week, they need to urgently reprioritize judicial confirmations if they want to help President Biden retake the lead by the end of the year and have a chance of exceeding Trump’s 234 confirmed judges by the end of next year.

Until recently, the White House and Senate had talked up their pace of judicial confirmations and for good reason. At the end of his first year, the Senate had confirmed 40 of President Biden’s judicial nominees, compared to 19 in Trump’s first year and 13 in former President Obama’s. After his second year, Biden had 97 confirmed judges compared to Trump’s 85 and Obama’s 62. Only at the end of July did Biden fall behind his predecessor and then further behind in August.

As of today, President Biden has had 140 federal judges confirmed, versus the 144 Trump had confirmed by the end of July of his third year and 146 by the end of that August. Looking ahead, the Senate needs to confirm 47 more judges by the end of December if President Biden is to even tie Trump’s 187 in his first three years. For reference, that is four more than the Senate confirmed in the first seven months of the year.

The numbers matter in a country that is increasingly shaped by courts. The confirmation of diverse, qualified federal judges with life tenure is one of, if not the most impactful and lasting things the Senate can do in this divided Congress. There is no chance of enacting meaningful legislation on priority issues like abortion rights and voting rights, but Senators can help protect both by confirming judges who are committed to vindicating our fundamental freedoms and preserving the rule of law. This is why Senators urgently need to reprioritize judicial confirmations starting this week.

The White House has been doing what it can by continuously rolling out new nominees, including more last week. The question is whether the Senate will step up its efforts after choosing to leave for its August recess with 17 judicial nominees awaiting floor votes. Given that the Senate has confirmed as many as 12 judges in a week, there is good reason to believe the Senate could have confirmed at least those 17 nominees had it opted to spend even part of August in DC.

Now, the Senate returns to session with the added challenge of averting a government shutdown when the fiscal year ends on September 30. It rightfully will prioritize keeping the government funded and open. That is not reason, however, to deprioritize judicial confirmations. The Senate is well versed in multitasking.

Judicial confirmations are only going to get harder as we near Election Day next year and Senators strive to spend less time in DC and more time campaigning. Additionally, 40 of the 60 judicial vacancies currently without announced nominees are district court vacancies in states with one or two Republican Senators, making them subject to the blue slip, the Senate tradition that enables home state Senators to effectively veto nominations for district court vacancies in their state. If the Senate insists on clinging to the blue slip, filling these vacancies will be yet another challenge in striving to match or exceed Trump’s 234 confirmed judges.

The White House has managed to work with some Republican Senators on nominations and presumably is working with more behind the scenes. That said, such deals are likely to become either harder or harder to stomach as we inch closer to the 2024 election and bipartisanship becomes yet more scarce. In sum, the Senate cannot afford to deprioritize confirmations any longer.

The Biden administration and the Senate’s goal should be to regain the lead on judicial confirmations by the end of this year in route to exceeding Trump’s total of 234 confirmed judges. The White House should lead the way by announcing at least 13 more nominations in September. For its part, the Senate should promptly eliminate the blue slip and expand its calendar by working Monday through Friday to enable more time to confirm judges.

No one knows how the 2024 election will play out. There should be an all-out effort to fill as many federal court vacancies as possible before the end of 2024.