Democrats reach milestone: 100 new district court judges
By CARL HULSE
President Joe Biden and Democrats, largely stymied by Republicans from enacting their policy agenda, have transformed the Senate into a judicial confirmation factory that has just passed a major milestone in its drive to remake the federal courts, approving the 100th District Court nominee since Biden took office.
The pace of the effort has surpassed the one set by Republicans when they pushed to reshape the courts during the administration of former President Donald Trump, putting the Biden administration 20 District Court nominees ahead of the Trump team at the same point in his term.
“These judges will affect America long after just about every senator is out of here,” said Sen. Chuck Schumer, D-N.Y., the majority leader, who has had a longtime interest in judicial confirmations. “It is hugely important. It’s a step-by-step process. It’s hard.”
Despite being slowed by absences and resistance from Republicans who see some Biden nominees as unacceptable, the Democrat-led Senate hit the 100 mark last week with a 50-49 vote to confirm Natasha Merle to a seat in the Eastern District of New York. She was one of a string of newly confirmed judges with civil rights backgrounds whose nominations had been slow to reach the floor, given concerted Republican opposition.
While District Court judges were often previously confirmed on voice votes, the fight over the ideological leanings of nominees means nearly all of them are forced to navigate two votes. And there is little margin for error given the Democratic caucus’ slim 51-49 edge in the Senate and occasional defections from the Democratic side by Sen. Joe Manchin of West Virginia. Both parties have put a major emphasis on filling vacancies, given the increasing role the federal courts play in setting policy and deciding politically charged cultural issues.
Despite the judicial tally, some progressives are still agitating for Senate Democrats to do more to try to match the confirmation successes of Trump and Sen. Mitch McConnell, R-Ky., the minority leader.
Some are urging Democrats to forgo the planned August recess and remain in session to confirm judges, and also to be more aggressive in nominating and confirming District Court judges in states with Republican senators. There are more than 40 vacancies without nominees and the potential for dozens more if eligible judges retired.
Without such a push, Biden is in danger of falling behind his predecessor by the end of the year, they say.
“It is a good thing so far,” said Russ Feingold, a former Democratic senator from Wisconsin who now heads the American Constitution Society. “It would be terrible shame to not continue that work in an aggressive manner over the next year, year and a half. We believe the Senate has to expand the calendar.”
Feingold noted that some of the newest judges had to wait nearly two years before their nominations were brought to the floor, and he suggested Democrats were being too cautious.
“It really underscores the need for the Senate to pick up its pace generally,” Feingold said. “Waiting does not help anyone.”
Despite the pressure from the left, Senate Democrats are very unlikely to scrap their recess in a rush to confirm more judges. They say it would probably be futile since some senators would choose not to attend and Republicans could throw up new procedural roadblocks.
Sen. Richard Durbin, D-Il., who chairs the Judiciary Committee, dismissed Feingold’s criticism.
“He knows better,” said Durbin. “He served on the committee.”
Republicans note that Democrats still lag behind the Trump era when it comes to judges named to appeals courts, with 35 so far for Biden compared with 41 for Trump, who had also been able to fill two vacancies on the Supreme Court by this point in his tenure, while Biden has filled one.
Republicans say the circuit courts — the level between District Courts, where trials are held, and the Supreme Court — are far more anfluential than the trial courts when it comes to settling matters of federal power and social policy. They also point out that Democrats have benefited from a Republican-led rules change in 2019 that substantially reduced the Senate floor time required to win confirmation of a District Court nominee.
But Democrats say that the importance of District Court judges has recently been underscored by decisions at that level by Trump-nominated judges on issues such as COVID-19 rules, abortion and even the criminal case of the former president himself. They are eager to put their nominees with backgrounds in civil rights and criminal defense on the bench.
“Trump put in so many horrible right-wing judges,” Schumer said. “The people on the Supreme Court are obvious, but it’s even worse on most of the circuits.”
The big test for the White House and Senate Democrats will come when they run out of openings in states represented by Democratic senators and face the prospect of being unable to fill District Court vacancies in states with Republican senators, who can kill a nomination by denying a “blue slip” under a Senate tradition that gives senators a say in the selection of judges from their home states.
Democrats have made progress in finding consensus candidates with Republican senators, but it has been slow — and not all Republicans are willing to consider Biden administration nominees, meaning scores of vacancies could be left unfilled at the end of 2024.
Progressive advocacy groups want Democrats to jettison the blue slips and accompanying veto power.
“We’ve got to get rid of the blue slips instead of waiting around to see what happens,” Feingold said. “It might be too late.”
But Democrats said that move could spark a procedural war that would slow the nomination process to a crawl. They note that an additional two dozen nominees are in the pipeline and say they will assess the next steps once those people are confirmed. Overall, Biden has installed 136 judges, compared with 123 for Trump at this point, though Trump finished his third year with 187 confirmations and his term with 234, according to Feingold’s group.
“I’m very pleased at the pace at which we’re going,” said Schumer, who noted that Democrats also scored some legislative victories while pushing nominations. “I’m going to keep at it. Our goal is to surpass even what Trump did.”