January 2, 2023
Democrats fell just short of an ambitious goal of confirming 100 new federal judges during the 117th Congress, but they confirmed 97 jurists before year-end 2022 and are optimistic that they can continue to reshape the courts over the final two years of President Joe Biden’s term, reports The New York Times.
The Senate’s top two Democrats say their ability to outpace the concerted Republican judicial push of President Donald Trump’s first two years, with a total of 97 judges seated, was especially noteworthy—considering they did it with a 50-50 Senate, an evenly divided Judiciary Committee, and little cooperation from most Republicans.
And the personal and professional backgrounds of the judges they confirmed were markedly different from the credentials of those seated in the past. The Senate named scores of women and people of color to the courts—many with specialties in defense and civil rights work as opposed to the corporate law partners and prosecutors who were the norm in previous administrations of both parties.
“It’s remarkable to think that an 11-11 committee, with the Republicans we have on that committee, was able to achieve this,” said Senator Richard Durbin of Illinois, the number-two Democrat who, as chairman of the Judiciary Committee, led the judicial push.
A review of the Judiciary Committee votes cast on the 126 nominees showed scant support from most Republicans on the panel, several of whom are among the most conservative in the Senate. The nominees were historically diverse, including 92 women, 60 of whom were women of color out of a total of 85 people of color, along with eight LGBTQ nominees.
Among Republicans, Senator Josh Hawley of Missouri voted for only one of the nominees; Senator Ted Cruz of Texas voted for two; Senator Tom Cotton of Arkansas and Senator Ben Sasse of Nebraska voted for five; Senator Marsha Blackburn of Tennessee voted for six; and Senator Mike Lee of Utah voted for nine. Republicans have criticized the Biden nominees as too liberal and sympathetic to criminal defendants to be installed on the bench.
Senator Lindsey Graham of South Carolina, who says he believes that presidents are entitled to confirmation of qualified judges of their choosing, was the most frequent Republican backer of Biden nominees on the committee, supporting 107. He was followed by Senator Thom Tillis of North Carolina, at 50; Senator Charles E. Grassley of Iowa, the senior Republican on the Judiciary Committee, at 40; Senator John Cornyn of Texas, at 30; and Senator John Kennedy of Louisiana, at 26.
“We had three or four Republicans who were really open-minded and helped us on the votes,” said Durbin in an interview, singling out Graham. “We had some who didn’t.”
Still, the need to make sure that all Democrats were on hand for judicial votes to offset the Republican opposition, the competition for floor time and the press of other business continually complicated their efforts, leaving nearly 30 in the pipeline for action once the new Congress convenes next week. More await committee consideration. Democrats had hoped to cut a deal with Republicans to advance a few of the less-contentious nominees as Congress wrapped up to reach the symbolic milestone of 100 but were unable to do so.
But the 97 confirmed, including Supreme Court Justice Ketanji Brown Jackson, surpassed the Trump record of 85 judges. That was compiled with what to that point was one of the most intense efforts ever to fill court slots under the stewardship of Senator Mitch McConnell of Kentucky, the Republican leader who vowed to “leave no vacancy behind.”
The success of Democrats in holding and expanding their majority last month will allow them to continue to control the confirmation process while a new one-seat advantage on the Judiciary Committee should enable them to clear procedural obstacles more easily.
But progressive judicial activists warn that the Senate leadership might need to take other steps to keep up the pace the next two years. So far, Democrats have adhered to an informal tradition that gives home-state senators virtual veto power over nominees for district court slots under what is known as the “blue slip” rule by agreeing to not move forward unless senators return a blue slip of approval.
As a result, the Biden Administration would need to negotiate judicial selections for district court seats in states represented by at least one Republican senator, if it hopes to fill those mounting vacancies. The voting record of Republicans on the committee and in the full Senate suggests that finding common ground on nominees could be difficult and time-consuming. One district court pick for Wisconsin already has been blocked by the refusal of Senator Ron Johnson, the Republican from the state, to return a blue slip.
Brian Fallon, the head of the progressive advocacy group Demand Justice, said that Durbin would come under increasing pressure to jettison the blue slip rule, which Fallon called an anachronism dating back to segregationist years in America.
“As historic as President Biden’s first two years were, if he wants the chance to match Trump’s mark for judges confirmed in a single term, Democrats will need to get rid of the so-called blue slip,” Mr. Fallon said. “The math dictates that there are only so many more vacancies Biden can possibly fill in safe Democratic states in the coming two years.”
But Durbin has resisted making that change—saying that he would do so only if he made a determination that the system was being abused. He and Senate Majority Leader Chuck Schumer of New York say they intend to keep up their judicial assembly line.
“We are proud of how far we have come in our first two years,” Schumer said. “And we are just getting started.”
Research contact: @nytimes
