As the electoral showdown approaches, President Joe Biden finds himself grappling with the formidable challenge of outpacing his predecessor, Donald Trump, in shaping the judiciary. Concerns among progressive advocates are mounting as the possibility of Biden falling short of Trump’s robust judicial appointments during his four-year term looms large.
In anticipation of a potential 2024 election rematch, Senate Democrats are committed to prioritizing the confirmation of Biden’s judicial nominees, seeking to build on the 166 already approved for the bench. Despite maintaining or exceeding Trump’s pace in the initial two years, Biden faced a slowdown in 2023. Senate Republicans flexed their influence, compelling the White House into negotiations over potential nominees.
Democratic former U.S. Senator Russ Feingold, a leader of the liberal American Constitution Society, expressed concern that this deceleration jeopardizes Biden’s capacity to appoint diverse judges. With the impending election determining the fate of a second term and Democratic control of the Senate, the risk of progress stagnation or regression is palpable.
Biden’s enduring commitment to diversifying the judiciary, a cornerstone of his 2020 campaign, is underscored by the statistics. Two-thirds of his confirmed nominees are individuals of color, and 108 are women, aligning with the goal of rectifying the historical imbalance of predominantly white male judges. The Leadership Conference on Civil and Human Rights reports these figures.
Throughout the year, Biden nominated civil rights lawyers and public defenders, countering the conservative influence of Trump’s appointees. Notable 2023 confirmations include Julie Rikelman, a former abortion rights attorney now serving on the Boston-based 1st U.S. Circuit Court of Appeals, and Dale Ho, a voting rights advocate now a federal judge in Manhattan.
The Senate Majority Leader, Chuck Schumer, affirmed the commitment to prioritizing diverse judge confirmations. However, the confirmation of 69 judges in 2023 fell short of Trump’s third-year pace of 102 confirmations. The Senate Judiciary Committee faced challenges processing nominees due to the absence of the ailing panel member, the late Democratic Senator Dianne Feinstein.
Looking ahead to 2024, Biden has the opportunity to overcome the previous year’s slowdown. With 30 nominees announced and 53 current vacancies on the federal bench, he could theoretically match Trump’s four-year total. Yet, challenges arise as 22 vacancies lie in states with one or two Republican senators, capable of leveraging the “blue slip” custom to veto nominees.
The pressing question remains: can Biden effectively nominate judges in red states? Russell Wheeler, a visiting fellow at the Brookings Institution, emphasizes this uncertainty. Progressive groups urge Senator Dick Durbin, the Judiciary Committee’s Democratic chairman, to abandon the “blue slip” custom, arguing that it hampers Biden’s ability to appoint judges in conservative-leaning states.
Leah Litman, co-host of the liberal legal podcast “Strict Scrutiny,” asserts that Biden’s inability to nominate judges in these states empowers Republican lawmakers to enact laws without fearing judicial intervention. Highlighting the impact in Texas, where Trump appointed conservative judges sympathetic to challenges against Biden policies, Litman underscores the critical role of judicial appointments in shaping policy outcomes.
Despite acknowledgment of judicial vacancies in states with Republican senators, Durbin maintains the tradition, encouraging Republicans to demonstrate compromise. The White House cites recent successes, including district court judges confirmed in 2023 and pending nominees from various states.
As 2023 concludes, Biden’s announcement of intentions to nominate five judges in states with Republican senators signals a continued push to shape the judiciary. The unfolding dynamics underscore the intricate dance between the executive and legislative branches in determining the future composition of the federal bench.
