Wednesday, October 4, 2023
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Off to the races: Midterms, and the Senate creeping right, put pressure on judicial vacancies

November elections are making the confirmation of new federal judges a priority for Democrats as the chance of a change in Senate power threatens to stymie judicial appointments.

WASHINGTON (CN) — Ketanji Brown Jackson's confirmation hearings have concluded, but high-stakes judicial battles are far from over as Democrats fret about what a red sweep in the 2022 midterms will mean for empty federal bench seats across the country.

In his first year in office, President Joe Biden appointed and confirmed judges to the federal bench at a rapid pace not seen in decades. Bolstering that record, Jackson's ascendence to the Supreme Court earlier this month marked both a political win for Democrats and historic moment for the nation's highest court.

But as November and the possibility of a Republican Senate draw near, Biden has yet to propose any candidates for 57 judicial vacancies and 28 soon-to-be vacancies. Meanwhile another 16 nominees to the federal bench await a vote in the Senate. Biden now faces a sprint to the midterms, having to select and get as many judicial picks confirmed by the Senate as possible before the election that could upend his party's slim majority.

"There's certainly going to be pressure to increase the pace of nominations simply because the potential outlook for the midterm elections is not great for the Democrats," Rorie Solberg, a judicial politics researcher and professor of political science at Oregon State University, said in an interview.

The president's party traditionally loses congressional seats in the midterms, though more so in the House than the Senate. But Democrats do not have a seat to spare in the 50-50 Senate without losing their majority, power that is critical in the increasingly partisan process of confirming federal judges.

During Jackson's confirmation hearings, Republican Senator Lindsey Graham of South Carolina made clear the ramifications a Republican Senate would have on Democrats' selection and confirmation of judicial nominees.

"I’ll say this: If we get back the Senate, and we’re in charge of this body and there is judicial openings, we will talk to our colleagues on the other side; but if we’re in charge, she would not have been before this committee,” Graham said of Jackson.

It takes only 51 votes to confirm a federal judge, courtesy of the retirement of the filibuster for judicial nominees during the Obama administration, but votes have become increasingly partisan in recent years with party-line votes becoming a common practice.

"Thirty years ago, judges got confirmed largely on voice votes and unanimous consent. It was fairly quick. That wasn't too long ago," Russell Wheeler, a judicial researcher and visiting fellow in the Brookings Institution, said in an interview. "Now, every one is a knock-down-drag-out battle and you got to go through the cloture dog-and-pony show. It's very demanding on the Senate for no good reason at all. We need more of the Lindsey Grahams who said presidents get to pick judges unless they're outrageous. That Lindsey Graham appears to have left the station."

It leaves the White House and Democrats in the position of needing to fill vacancies, particularly politically adventitious ones, quickly over the next six to seven months.

"Their nomination and confirmation machinery so far has been pretty effective. They're still ahead of the predecessors, so there's no reason to think it's not going to stay effective," Wheeler said.

As midterms draw near, one of the areas that Wheeler says the Biden administration should make a priority is the slew of vacancies created by Republican appointees.

Two vacancies created by Republican appointees on federal courts of appeals still lack nominees.

Chief U.S. Circuit Judge Jeffrey Howard sought senior status from his First Circuit post at the end of March. The George W. Bush appointee’s vacancy provides the opportunity for the court to become a panel of all Democratic appointees.


Another Bush appointee, former Judge D. Brooks Smith, left the Third Circuit last year, giving Biden the opportunity to rebalance the court into a panel made up evenly of Republican and Democratic appointees.

Republican appointee vacancies in now-Democratic held states are also an opportunity for change at the district court level. These vacancies provide a chance to tilt the ideological balance of the courts, while the party makeup of their Senate delegations practically ensures the likelihood of a nominee's confirmation.

Of the 33 vacancies created by Republican appointees on the district courts, according to Wheeler's research, 15 are in states with two Democratic senators or no senators at all in the cases of the Court of International Trade and District of Puerto Rico.

"It seems to me that the administration is aware of the fact that district judges do matter and that all the action is not just on the Court of Appeals. Just look at all these nationwide injunctions these district judges are issuing," Wheeler said, referencing recent court battles on immigration and vaccine mandates that have drawn national attention.

But as the administration races to fill open court seats, they likely will begin to bump up against the issue of navigating judicial appointments in red states, a dynamic Biden has so far largely managed to avoid.

Neal Devins, professor of law and government at the College of William and Mary, attributed the historic speed of Biden's nominating spree, at least in part, on the fact that he "focused on states where the senators were Democrats — so there'd be no issues involving courtesy, blue slips or any of that other stuff."

"So in states that have Republican senators, particularly with respect to Court of Appeals judges, the Democrats have a basic choice to make: Are they going to allow any accommodations to the minority party? Or are they just simply going to say, ‘We run the risk of losing control of the Senate and we're going to make sure that we get all these people through,'" Devins said in an interview.

The White House did not directly respond to a request for comment on whether the administration is in talks with Republican senators about judicial vacancies in their states.

Time is also of the essence for judicial confirmations, an often weekslong process that requires nominees to be named by the president, undergo scrutiny and a vote in the Senate Judiciary Committee, then debate and a vote on the Senate floor, not to mention an additional vote and debate period for those who receive a tie vote in committee.

"The calendar is the problem. We've got holidays coming up. We've got this two-week hiatus, then you've got Memorial Day, you've got July 4, you have August recess. One possibility is to hold the Senate as long as possible, and McConnell did set some precedents there," Carl Tobias, a professor at the University of Richmond Law School, said in an interview.

In 2018, Senator Mitch McConnell, then the Senate majority leader, canceled three weeks of the Senate's August recess to keep lawmakers in Washington, D.C., barreling ahead with the confirmation of then-President Donald Trump's judicial and executive branch nominees.

To understand what judicial confirmations could look like during a Biden presidency with a Republican Senate, experts say look no further than the last two years of the Obama administration, when McConnell was majority leader.

"The past is prologue. McConnell pretty much shut down the confirmation process for Supreme Court, Court of Appeals nominees in the last year of Obama," Devins said.

From 2015 to 2016, less than one-third of Obama's nominees squeaked through the Senate and made it on to the federal bench. Those were also Obama's lame-duck years, the time at the end of his presidency, but experts say they provide an example of the obstructionism Republicans are willing to display for the sake of political sway over judicial vacancies.

"There's the possibility that Mitch McConnell will be the majority leader next year, in which case confirmations are going to come to, if not a total halt, they're going to make molasses look like Niagara Falls," Wheeler said.

Obama's failed Supreme Court nomination of Merrick Garland, then chief judge at the D.C. Circuit, may signal the difficulty Democrats could face in getting judicial nominees through a Republican chamber even if they select moderate nominees.

"The pace would slow to essentially a crawl despite whatever the Biden administration might try to do in terms of moderating their nominees or changing the profile of their nominees. And again, Garland is your sort of poster child here," Solberg said. "If Garland as that sort of olive branch, six or more years ago, wasn't sufficient, I'm not sure what would be sufficient for lower court nominations where the spotlight from the public and from the media isn't there."

If 2022 brings with it a Republican majority in the Senate, forcing gridlock on judicial nominations would likely be the GOP's means of paving a path for 2024.

"If you really think you're going to be able to take the White House back, why wouldn't you delay and build up a pretty big backlog of vacancies for the next person to fill? That just seems to be Mitch McConnell's modus operandi with judicial nominations," Solberg said.

But delaying judicial confirmations doesn't just have a political impact. Keeping these vacancies unaddressed for extended periods of time for the sake of partisan ends can create understaffed courts and overwhelming dockets.

"In many ways for litigants, it's even worse. On the district court level, if there are a lot of vacancies on a court, and the court and the district judges are obliged to give priority to criminal cases under the Speedy Trial Act, it means in some districts the civil docket basically just goes away. And that's not just civil rights, that’s also the small business owner who can't get her patent case heard," Wheeler said.

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