December 22, 2023
To Do List for 2024: 70 Judges in 12 Months
The Senate broke for the holidays this week, leaving President Biden 21 appointments behind former President Trump’s 187 at the end of three years. Had the Senate prioritized judges since returning in September from its August recess, it could have ensured that President Biden matched or even exceed Trump’s pace. The nominees were there all fall! The political will was not. This is alarming as we stare down the final year of President Biden’s first term, with roughly 90 current or future known vacancies on the federal judiciary.
Three Years at a Glance:
President Biden has appointed: Former President Trump had appointed:
- 1 Supreme Court Justice - 2 Supreme Court Justices
- 39 Circuit Court judges - 50 Circuit Court judges
-126 District Court judges - 133 District Court judges
-0 Court of International Trade - 2 Court of International Trade
The GOOD News: The Biden-Harris administration has continuously prioritized demographic diversity, making progress towards achieving a judiciary that reflects the public it serves. Of President Biden’s 166 Article III appointments:
- More than 65% are women.
- More than 66% are people of color.
- This stands in stark contrast to the previous administration whose Article III appointments were overwhelmingly white (76%) and overwhelmingly male (84%).
The BAD News: President Biden fell behind his predecessor this year because the U.S. Senate did not consistently prioritize judicial nominations. The Senate confirmed zero judges in the months of January, April, and August, only three in September, four in July, five in October, and seven in December. When the Senate broke for the holidays this month, it left 14 judicial nominees awaiting floor votes, most of whom, along with all the other judicial nominees pending in the Senate, have been “returned” to the White House and will have to be renominated in the new year.
AS A RESULT: the Senate must confirm more judges in 2024, an election year, than it has in any single year thus far during the Biden-Harris administration.
- 2021: 40
- 2022: 57
- 2023: 67
- 2024: Must confirm at least 68 judges for President Biden to match Trump’s 234.
We are calling for more, however. To address the Right’s packing of the federal courts, the Biden administration needs to do more than match its predecessor’s 234. President Biden and this Senate need to exceed it. We are calling on the Senate and the White House to appoint 70 judges in 2024.
It will be inexcusable if we reach the end of 2024 and President Biden is still behind his predecessor. Senators Schumer and Durbin are on the record promising to “balance” the federal courts after the Right spent the Trump administration packing them with white, male ideologues. To balance the courts, President Biden must at a minimum match, but ideally exceed the 234 appointments of his predecessor. This is possible, but it will by no means be easy.
Road to 236: To ensure that it confirms at least 70 judges in 2024, the U.S. Senate must:
- Expand the calendar. The Senate majority controls when and for how long the Senate is in session. Starting as soon as Senators return in January, Senate leadership should plan to keep the Senate in session a minimum of five days per week.
- Stay in session through September. During an election year, there will be those who want to recess early in the summer and not return until after Election Day. The Senate cannot afford to lose months out of the year and should plan now to stay through the summer, including August.
- Eliminate the blue slip tradition that enables a single Senator to obstruct the filling of a district court vacancy in their home state – for any reason or no reason.
- Reduce post-cloture debate time for circuit court nominees from 30 hours to 2 hours, akin to district court nominees.
- Allow the Senate to consider multiple nominees
- Plan now to use next year’s lame duck session to maximize judicial confirmations, regardless of election results.
Starting in January: The Senate dug itself a hole by not prioritizing judges in 2023, and the onus is on the Senate majority to dig itself out. The first few weeks of 2024 will be telling. In 2023, the Senate did not confirm a single judge until February 9. That cannot happen again if the Senate majority is serious about balancing the courts. While the White House will need to renominate nearly all pending nominees in the new year, this process can be done efficiently, teeing up the Senate to confirm judges in January and set the tone for 2024. It is encouraging that Senator Schumer has already scheduled a June 8th vote on cloture for John Kazen, nominee for the Southern District of Texas. We have seen the Senate confirm as many as 12 judges in a week, so we know what is possible when the Senate prioritizes the courts. We need to see more weeks like that in 2024.