January 13, 2023

We Need More Judges

Russ Feingold President

A little judicial math for you. President Biden and the previous Senate confirmed 97 federal judges in the first two years of the Biden-Harris administration. This exceeds the 85 judges that President Trump had confirmed in his first two years. To continue this trend and exceed the 234 judges that Trump had confirmed in four years, President Biden and the new Senate will have to confirm 138 judges in two years, or roughly 70 judges per year. Viewed another way, they will have to confirm over forty more judges than they managed to confirm in the past two years.

Is this doable? Yes. Is it doable with the Senate’s existing rules and norms? That’s more difficult. Particularly when we consider that Senator Mitch McConnell and his caucus are likely to use every tool in their toolbox to obstruct the confirmation process. Recall that this is the same party that reduced the Supreme Court to eight for over a year in order to get Neil Gorsuch on the Court, and then jammed Amy Coney Barrett through the Senate while voters were casting ballots for now President Biden. Senator McConnell has proven his willingness to defy norms and to obstruct the confirmation process.

It doesn’t help that the Senate’s current rules and norms are ripe for abuse, starting with blue slips. This is why ACS is proposing that the Senate make three immediate changes to streamline the confirmation process, reduce the opportunities for obstruction, and to enable it to confirm as many judges as possible over the next two years.

Eliminate Blue Slips: Once upon a time, there was such a thing as bipartisanship. During that time, it made sense to have a process by which Senators were consulted and given deference when filling judicial vacancies in their states. Hence the blue slip process whereby Senators turned in an actual “blue slip” to convey their support for a judicial candidate. Such bipartisanship is rare if not non-existent today. Instead, the blue slip is ripe for abuse by Senators who are hostile to the White House and who use the blue slip process to stymie the filling of vacancies. This is no time for such games. The Senate should get rid of blue slips now.

This is particularly important now as there are more district court vacancies without nominees in states with one or two GOP senators than in states with two democratic Senators. Of the 97 confirmed judges over the past two years, 55 were district court judges confirmed to vacancies in states with two democratic Senators – thereby posing no blue slip issue most likely. Only 9 of the 97 were judges confirmed to district court seats in states with one or more GOP senators. The remaining 97 were judges whose confirmations did not involve blue slips at all, such as circuit court judges. The Senate experience with blue slips over the past two years is highly unlikely to be its experience over the next two years – all the more reason to scrap this norm now.

Reduce Floor Time: Currently, a circuit court nominee requires 30 hours of floor time before the Senate can vote to confirm. Do not be fooled into thinking that those 30 hours are used for genuine debate and consultation. Senators almost always know how they are going to vote on a nominee by the first minute of the first of those 30 hours. In contrast, district court nominees only require two hours of floor time. There is no need to allocate 28 more hours for a circuit court nominee than for a district court nominee. The Senate should amend its rules to only require two hours of floor time before voting to confirm a circuit court nominee.

Allow for Simultaneous Consideration: The Senate can walk and chew gum at the same time. In this case, I mean the Senate can handle multiple judicial nominations simultaneously. Rather than the current set up whereby only one nomination can be taken up by the full Senate at a time, the Senate should enable simultaneous consideration of multiple nominations.

In advocating for the elimination of the filibuster, I frequently hear concerns about how a future GOP-controlled Senate would run amok in a world without the filibuster. I can hear similar concerns here. If the current Senate makes these changes, a future GOP-controlled Senate would take advantage of them. I have the same response to this concern as I do to that about the filibuster: Senator McConnell will do it anyway. If the current Senate doesn’t make the three changes proposed here, McConnell will not hesitate to make them if he regains the position of Majority Leader and believes such changes would benefit him and his caucus. To minimize this current Senate’s effectiveness out of fear of what McConnell might do in some hypothetical future is to give McConnell too much power in the here and now.

This Senate has the opportunity, working with the White House, to fill 135+ vacancies over the next two years and to help shape the federal judiciary for years to come. It should focus on maximizing this opportunity by making these three changes now.

Blue Slips, Confirmation process, Federal Courts, Judicial Nominations, Judicial Selection