November 30, 2023

Tick, Tock, Confirm

Russ Feingold President

In the early months of President Biden’s term, Senators Schumer and Durbin vowed to “balance” the federal courts. This was in the wake of the Trump administration and the GOP’s success in packing the federal judiciary with conservative ideologues. It was clear even then the impact that Trump judges would have on our laws and our lives. An impact that has become more and more stark in the years since, with judges taking aim at reproductive healthcare, voting rights, the First Amendment, and a litany of other vital protections in this country. We are now staring down the final year of President Biden’s first term with one question: will Senate leadership deliver on their promise?

As of December 1, President Biden has appointed 159 judges, bringing unprecedented diversity to the federal judiciary in the process. There are an additional 34 nominees pending right now in the Senate. This means that it is possible for President Biden to match Trump’s 187 appointed judges in three years, but it would require the Senate to confirm more nominees in the next two weeks than it has in nearly the past seven months. So, doable? Absolutely! Likely? More on that in a minute.

The Senate has dug itself this hole. Had the Senate confirmed even a couple more nominees each month this year, President Biden would easily have matched Trump’s pace through three years. Instead, the Senate is facing the real possibility of starting 2024 with a sizeable challenge before it: to confirm roughly 60+ judges in what is likely to be the most consequential election year for our democracy.

How does an election cycle impact the Senate? By making time even more scarce. In politics, money is the most important thing. In the Senate, time is the most valuable. And in an election year, Senators want to spend more time on the campaign trail and less time in Washington. This means, the Senate Judiciary Committee will have an increasingly difficult time convening a quorum to process nominees and move them to the Senate floor, where the Senate majority will have an increasingly difficult time predicting vote counts because of poor attendance.

But, as difficult as this may be, it will be inexcusable if we get to the end of 2024 and President Biden is behind his predecessor on judicial appointments. Trump appointed 234 judges in four years, over a fourth of all Article III judges. For Senators Schumer and Durbin to deliver on their promise of balancing the courts, they must ensure that President Biden has appointed at least that many, if not more.

President Biden is doing his part by continuously rolling out nominations. Proof of this is the fact that there are enough pending nominees for President Biden to match Trump’s 187 in three years. The nominations are there! The question is whether there is enough time left in 2023 to confirm 28 more judges to get President Biden to 187. The answer to this is “yes,” if the Senate makes more time. In the case of the Senate, time is something that actually can be made because the Senate majority controls the calendar, including when the Senate breaks for the holidays.

Senator Blumenthal said it well recently in speaking to the Washington Post, “My feeling is, we should stay weekends. We should postpone the Christmas recess. We should do whatever it takes — and I know that view is shared by a number of my colleagues, and we’re going to be pressing it with the leadership.” This is the attitude that is needed. Rather than looking at currently scheduled work weeks, look at the entire calendar, including weekends and holidays. There is time left for the Senate to confirm all of the currently pending nominees before the end of this year. Not only would this enable President Biden to match Trump’s pace at the end of three years, it would make reaching 234 confirmations by the end of next year much easier for the Senate.

Time is of the essence. Confirming diverse, qualified federal judges with life tenure is one of the most consequential things a Senator will do during their tenure. And, we know from recent history that confirming judges is a much better legacy to leave than leaving vacancies to chance heading into an election. Nobody knows how the presidential or senate elections will turn out next year. But we know who is in the White House right now and who is in the Senate. The clock is ticking. Now is the time to confirm judges.

On a positive note, the Senate Judiciary Committee followed through on its plan to vote to authorize subpoenas for Harlan Crow and Leonard Leo this week. We applaud the Committee for taking this rare but necessary step and for continuing its investigation into the unethical behavior of certain Supreme Court justices. We have said time and again, the Senate has not only the authority but the responsibility to check and balance the Supreme Court, and this includes when justices engage in unethical behavior. We encourage the Committee to remain diligent in checking the Supreme Court and to continue its pursuit of a binding code of ethics for the justices, unlike the optional “Code of Conduct” that the justices themselves released recently. A binding code of ethics is a necessary step in addressing the Court’s ongoing legitimacy crisis and in repairing the public’s confidence in this institution.

If you’re like me and judicial appointments and Supreme Court reform are priorities for you, catch this week’s episode of Broken Law. I joined Jeanne Hruska on the show to discuss both topics, as well as how voters can engage on the courts come election time. Listen to Broken Law wherever you get your podcasts or on our website.