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.
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