May 5, 2023

Time to Play Hard Ball on Judicial Confirmations

Russ Feingold President

As we celebrate AAPI month, I also want to highlight the progress – and remaining work – in confirming AAPI judges. Under the Biden administration, 19 AAPI judges have been confirmed to the federal bench (13 district court and 6 circuit court), bringing the total number of AAPI judges on the bench to 50. This includes Judge Cindy Chung, the first AAPI judge to ever serve on the Third Circuit. Several more are pending confirmation. Even if confirmed, this is still a tiny fraction of the federal judiciary and a reminder of the work still to do to achieve a federal judiciary that reflects the public it serves.

Work that needs to be done in haste. The 118th Senate has an opportunity to make historic strides in diversifying the federal bench by confirming qualified judges committed to the rule of law. That is, if the Senate majority steps up and starts playing hard ball by having a 20-month gameplan for maximizing judicial confirmations between now and the last day of the 118th Senate. Here’s such a game plan.

Confirm all judicial nominees pending on the floor. With Senator Fetterman’s return, there are sufficient votes to promptly confirm these 19 nominees.

Occupy the currently vacant seat on Senate Judiciary. Ideally, Senator Feinstein’s health improves, and she returns to Washington and to her committee seat. If she is unable to return soonest, however, then her seat needs to be filled by someone else. The easiest solution, having Senator Schumer appoint a substitute per Senator Feinstein’s request, is not viable because the Senate minority is refusing to do such a courtesy for a long-time colleague.

There are still multiple routes the majority could take to fill the Committee seat, including: creating a procedural carveout to the filibuster to enable the Senate to seat a substitute with just a majority vote; challenging the Parliamentarian’s interpretation of the Judiciary Committee’s rule that an affirmative, determinative vote cannot be done by proxy; or, creating a procedural carve out to the filibuster to allow discharge petitions with a majority vote. Discharge petitions enable nominees to make it out of Committee after receiving a tie vote. In the 117th Senate, when the Senate was split 50-50, discharge petitions only required a majority vote. Currently in the 118th Senate, they are subject to the filibuster, but this can be changed.

Eliminate blue slips. This undemocratic tradition enables a Senator for any reason, including a discriminatory reason, to single-handedly veto a judicial candidate nominated for a vacancy in the Senator’s home state. Senator Hyde-Smith’s refusal to return the blue slip for Scott Colom is a case in point.

I will say this again, Republicans will readily scrap blue slips if they regain control of the Senate and think doing so will advantage them. This is the caucus that scrapped blue slips for circuit court judges and hijacked seats on the Supreme Court. They will not hesitate to again run roughshod over Senate tradition to get what they want. Senate Democrats are just shooting themselves in the foot by retaining blue slips.

Reduce the post-cloture debate time for circuit nominees from 30 hours to 2 hours, akin to that for district nominees. The current 30-hour requirement is a waste of time as it is almost never used to debate a nominee.

Enable multiple nominees to be considered simultaneously on the floor. Senators can multitask. They already consider multiple executive nominees simultaneously. They can do the same for judicial nominees.

Scrap the August recess. This is the easiest way to make up the time lost in recent months due to valid medical absences. Senator McConnell set the precedent for this when he kept the Senate in Washington in August of 2018 to confirm judges.

Keep the Senate permanently in session, as needed. If the Senate minority insists on obstruction, Senator Schumer should keep the Senate in session from dawn until dusk for however long it takes to confirm every one of President Biden’s judicial nominees.

The Senate majority has a golden opportunity to counter the Right’s impact on our courts by confirming President Biden’s diverse, qualified judicial nominees. It’s time for the Senate majority to play hard ball, or Democrats will have only themselves to blame when they leave dozens of nominees on the table at the end of 2024.