The Senate’s top two Democrats say they will continue their push to fill vacancies in 2023, but activists warn that under current rules, it will be hard to keep up the pace.
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The 117th Congress confirmed 97 federal judges.
WASHINGTON — Democrats fell just short of an ambitious goal of confirming 100 new federal judges as time ran out on the 117th Congress, but they are optimistic they can continue to reshape the courts over the final two years of President Biden’s term.
The Senate’s top two Democrats say their ability to outpace the concerted Republican judicial push of President Donald J. 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 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 J. Durbin of Illinois, the No. 2 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 L.G.B.T.Q. 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; and Senator John Cornyn of Texas at 30.
“We had three or four Republicans who were really open-minded and helped us on the votes,” said Mr. Durbin in an interview, singling out Mr. 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.”
While the Republican-led Senate confirmed 30 appeals court judges, 53 district court judges and two Supreme Court justices by the end of Mr. Trump’s second year, Democrats seated 28 appeals court judges, 68 district court judges and one justice in the same amount of time. They also had significantly greater success than President Barack Obama did in his first two years with 62 confirmed.
Senator Chuck Schumer, the New York Democrat and majority leader who has long had a deep interest in judicial confirmations, noted that of 28 appeals court judges confirmed this Congress, 11 were Black women, more than under all previous presidents combined.
“I’m particularly proud of the professional diversity,” Mr. Schumer told reporters. “For the first time, we have a bunch of public defenders, immigration lawyers, consumer people, so it’s not just the corporate perspective or the prosecutorial perspective that’s on the bench.”
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 has already 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 Mr. Durbin would come under increasing pressure to jettison the blue slip rule, which Mr. 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 Mr. Durbin has resisted making that change, saying he would do so only if he made a determination that the system was being abused. He and Mr. Schumer say they intend to keep up their judicial assembly line.
“We are proud of how far we have come in our first two years,” Mr. Schumer said. “And we are just getting started.”
Source: nytimes.com
