Biden on track to surpass federal judges confirmed under Trump

WASHINGTON (CN) — With the presidential election just months away, Democrats and President Joe Biden appear set to confirm more new federal judges than former President Donald Trump did during his single term in office.

But even as Biden angles to outdo his predecessor, a feat in this closely divided Senate, there are several nominees awaiting votes — including some who have failed to capture solid Democratic support — whose path to the federal bench remains murky.

The White House is fighting from the lead, however. As of August, the Senate has approved 205 Article III judgeships appointed by the Biden administration, compared with the Trump administration’s 203 confirmations at the same point in 2020. Biden’s nominees include 159 district court judges, 43 appellate judges, two nominees for the Court of International Trade and Supreme Court Justice Ketanji Brown Jackson.

Those appointments also include some historic firsts for the federal bench. According to statistics provided by an aide to a senior Senate Democrat, White House nominees confirmed by Congress include the first Muslim man and woman to serve on the federal bench, the first openly lesbian woman to sit on a federal circuit court and the first Navajo federal judge. President Biden’s nominees also include half of all Indigenous judges confirmed to the bench in U.S. history.

And, Democrats say, there is a clear path for the White House to surpass the 234 federal judges confirmed under the Trump administration.

There are currently more than two dozen Biden nominees left to be confirmed before the election. That figure includes 21 judicial candidates who have passed the Senate Judiciary Committee and are pending on the floor. Six more nominees are awaiting a committee vote and another six have yet to get a hearing.

If all these nominees are confirmed, Biden could round out his term — barring any new nominees from the White House — with 238 judges, just barely edging out Trump’s record.

But some of those pending appointments could cause Democrats trouble.

Among those nominees awaiting a vote on the Senate floor is Adeel Mangi, tapped by the Biden administration to fill a vacancy on the Third Circuit Court of Appeals. Mangi came under fire from Republicans and conservative legal groups in the spring, who attempted to create an issue out of his affiliations with a university research program and a prison reform advocacy group.

The White House, Democratic leaders and legal experts alike have said the attacks on Mangi, who is of Pakistani descent, were spurious and motivated by Islamophobia. But the GOP’s lambasting of the nominee was enough to convince some Democrats in vulnerable Senate seats to withhold their votes.

Senator Catherine Cortez Masto and Senator Jacky Rosen, both from Nevada, have said that they would not support Mangi’s nomination on the Senate floor. Conservative legal groups also demanded that Montana Senator Jon Tester and Pennsylvania Senator Bob Casey, both also in tough races, publicly oppose the Third Circuit nominee. Neither lawmaker has said so far how they would vote.

Further complicating things for Mangi — and all Biden nominees — is West Virginia Senator Joe Manchin, who has said he will not support any White House political appointee that does not attract at least one Republican vote.

Despite the uncertainty surrounding Mangi’s confirmation, senior Democrats have stood by the nominee. Senate Judiciary Committee chair and Senate Majority Whip Dick Durbin has repeatedly said that Mangi was the target of “un-American” attacks by Republicans and that he is qualified for the bench.

Asked by Courthouse News in May whether he’d spoken with Democratic holdouts on Mangi, Durbin was exasperated.

“Would you lay off that nominee?” he said at the time. “We’ll take him in due time.”

Meanwhile, another Biden judicial appointee has become a sticking point for at least one Democrat on the Judiciary Committee.

In a rare move, the panel in July failed to advance Sarah Netburn, nominated to the Southern District of New York, to the full Senate. The deciding ballot keeping Netburn stranded in committee was cast by Georgia Senator Jon Ossoff, a Democrat, who became the first member of his party to cast a negative vote against any of the Biden administration’s more than 200 nominees.

Republicans opposing Netburn, a magistrate judge in the Southern District, had fumed about her move in a 2022 case recommending that an incarcerated trans woman be moved from a men’s prison to a women’s prison. Keeping the petitioner, a registered sex offender, in a men’s facility violated her Eighth Amendment rights, the nominee concluded at the time.

Ossoff told Courthouse News following the July vote that he had concerns about the “wisdom” of Netburn’s recommendation.

“These are very challenging decisions for prison officials and for judges,” said the senator.

Ossoff has long been an advocate for increased oversight of federal prisons; he authored a bill to that effect that cleared the Senate last month.

Though Netburn’s nomination stumbled in the Judiciary Committee, Democratic aides have pointed out that the panel can bring it back up at any time. Since the July vote, however, Netburn has yet to appear on the committee’s weekly schedule.

Before they departed Washington for Congress’ annual August recess, the Judiciary Committee advanced another seven White House nominees, some behind closed doors during a private session panel aides said was due to scheduling conflicts.

Follow @BenjaminSWeiss

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