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How Biden could surpass Trump’s record on judges

Democrats have outpaced the previous administration so far — but they’ll need to do more to beat Trump’s four-year record.

Capitol Hill
Supreme Court Justice Ketanji Brown Jackson is among the judges that President Biden and Senate Democrats have seen confirmed so far.
Jabin Botsford/The Washington Post/Getty Images
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

This week, the Senate confirmed President Joe Biden’s 100th judicial nominee, hitting a major milestone as Democrats try to counter Republicans’ efforts to remake the federal courts.

Confirming more judges is a key goal for Democrats given the lasting impact these nominees could have on the courts, and on policy. During the Trump administration, Republicans stacked the courts with conservative judges who’ve been central to placing new restrictions on everything from abortion to health care to labor rights. Democrats now have a chance to seat more nominees with liberal ideological perspectives — and to provide more representation in these roles. Since federal judges serve for life, they’ll have the ability to shape US policy for decades, with the effects of their rulings enduring for years.

Thus far, Biden has outpaced former President Donald Trump when it comes to the number of judges he’s been able to confirm at this point in his term, advancing 30 circuit court judges, 69 district court judges, and one Supreme Court Justice. Trump had confirmed 85 judges by the start of his third year, including 30 circuit court judges, 53 district court judges, and two Supreme Court Justices. More than 100 vacancies remain.

Senate Democrats cite quickly filling these openings — a responsibility given to the upper chamber by the Constitution — as one of their top priorities this term. “Judges are top-tier. It’s our legacy. It’s one of the major accomplishments that we do here,” Sen. Richard Blumenthal (D-CT), a member of the Judiciary Committee, told Vox.

Following the 2022 midterms, Democrats also face fewer impediments to confirming judges, because they now have a solid 51-person majority. And they have a big incentive to do so, seeing as it’s one of the few things the Senate can do on its own while Republicans control the House and slow the progress of potential legislation.

Progressive activists note, however, that Democrats will have to be even more aggressive if they want to match Trump’s overall record. By the end of his term, Trump had seen 234 judges confirmed, the most of any president in their first four-year term in recent memory. Those appointees — who now make up more than a quarter of judges on the federal judiciary — have participated in pivotal decisions on the Supreme Court and in several other courts across the country.

To match or surpass that figure, Democrats will have to increase their pace, much as Republicans did in the latter years of the Trump presidency. Their effort could run into a major Republican roadblock, however. Currently, senators are able to block district court nominees from their home state as part of the process the Judiciary Committee has observed in recent years. Because many of the remaining district court vacancies are in red states, Republicans have the chance to stymie Biden’s attempts to fill them, unless that practice is done away with.

Though Republicans have taken advantage of the tradition in the past, Senate Judiciary Chair Dick Durbin has said he’s interested in preserving the practice for now, and encouraging cooperation between the two parties. Depending on how aggressively Republicans decide to use this process, Democrats could be forced to reconsider, though.

“There are so many ways that Republicans can draw out and obstruct these open vacancies with the hope that they’ll be able to leave them open for a Republican president to fill,” says Chris Kang, chief counsel for the progressive advocacy group Demand Justice and a veteran of the Obama White House.

Democrats can capitalize on their majority

While they hold the Senate, Democrats have a major chance to continue making an impact on the federal judiciary.

And thanks to their newly established 51-person majority, they have more leeway, too. In addition to no longer having to worry as much about breaking ties in committees, they have a bit more room for floor votes in case a member is absent.

There are also a substantial number of vacancies that still need to be filled, and potentially more that could emerge if additional judges retire. Currently, there are 13 circuit court vacancies and 100 district court vacancies, 48 of which have nominees and 65 which do not, according to a tracker from the progressive group Alliance for Justice. Depending on whether additional judges step down in the next two years, there could be more vacancies as well, which would boost the number of nominations Biden is able to make.

Democrats are committed to expediting nominees, Senate Judiciary aides say, and the effort is already underway. In February, Senate Democrats on the panel rapidly approved 24 judicial nominees, including multiple who had previously been stalled by Republicans. Since the start of the term, the Senate has also been laser-focused on floor votes for judges, considering several this past week. Aides noted that they’re looking to the pace Republicans used for committee hearings and votes in 2019, and considering that as a marker for how quickly they’ll be moving as well.

Democrats’ efforts on judges are set to have a substantial impact, when it comes to both the ideological makeup of the courts and the breadth of experiences that these judges will bring.

Notably, Biden’s nominees are far more diverse both demographically and when it comes to professional experience relative to Trump’s: 76 percent are women, 68 percent are people of color, and a high proportion are public defenders or have a background in civil rights law. Most of Trump’s judges, meanwhile, are white and male, and come from more traditional prosecutorial or corporate backgrounds.

Many of Democrats’ picks have been groundbreaking: They’ve confirmed judges including Gina Méndez-Miró, who is the first LGBTQ person to sit on the Puerto Rico district court, Cindy Chung, who is the first Asian American person to sit on the Third Circuit Court, and Kentanji Brown Jackson, who is the first Black woman to sit on the Supreme Court. Biden has also seen a record number of public defenders confirmed on circuit courts, a development that could affect the types of decisions that are handed down.

There are progressive calls for Democrats to get even more aggressive

Depending on how much Republicans oppose Biden’s nominees, Democrats may need to take more action to actually ensure they are able to move forward with their ambitious plans for nominees.

There’s been a push from several groups — from progressive organizations to the New York Times editorial board — for Democrats to get rid of the “blue slip” system for district court judges.

Basically, blue slips allow senators to signal their approval for judicial nominees from their home states. If a senator does not return a blue slip for a nominee, that’s taken as an indication they don’t support them. Without a blue slip, nominees traditionally aren’t moved forward. This norm, however, is ultimately a courtesy that the majority can choose to provide or ignore, not a rule that’s set in stone.

Republicans began ignoring the blue slip process for circuit court judges when they had Senate control in 2018, a policy Democrats have continued. Activists now want Democrats to do the same for district court nominees, who could potentially get held up by Republicans looking to slow Biden’s selections. The idea is that if Republicans don’t want a seat to get filled, they could theoretically keep it open by refusing to submit blue slips regardless of who the nominee is.

Some advocating for the change, like those at the Times, argue the system is fundamentally undemocratic. Others, including many progressive activists, say that it should be changed to ensure Democrats can confirm every judge they can in the next two years.

“If they remove the blue slip impediment, they can fill all their vacancies. If they don’t, they won’t be able to fill all those vacancies,” says Alliance for Justice president Rakim Brooks.

Kang cited Wisconsin Sen. Ron Johnson’s 2022 decision to withdraw support for William Pocan’s district court nomination as an example of how the GOP has used this tool to block nominees. Johnson had previously supported Pocan’s nomination, only to withhold his blue slip months later. Johnson has said that this decision was driven by the fact that Pocan lived outside the district, though Pocan offered to move should he be confirmed, and it’s not clear why this wasn’t initially an issue in his nomination. Kang also noted that Republicans have a history of withholding blue slips, stopping progress on 18 judges in the Obama administration, often with little explanation.

Durbin, the head of the Senate Judiciary panel, has been circumspect about making any such changes just yet. He’s cautioned Republicans against abusing blue slips but noted that he favors keeping the tradition at this time. “I want to keep the blue slip,” Durbin told CNN. “I think it’s a good thing, but we need cooperation.”

Republicans have echoed this sentiment and claim they’re still interested in working with Democrats to find deals on nominees. “I’m confident that red-state Republicans will work with the administration in a reasonable fashion,” Sen. Lindsey Graham (R-SC), the ranking GOP member on the Judiciary Committee, told Vox.

Durbin’s statements suggest that the blue slip process is probably staying in place in the near term. Whether it will prove to be an impediment to Biden’s — and Senate Democrats’ — plans for advancing judges, however, could soon become more apparent.

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