Biden aims to burnish legacy with judicial picks
Kaelan Deese
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Senate Democrats are taking a page from the playbook of Minority Leader Mitch McConnell (R-KY), usually their chief legislative nemesis.
Back during former President Donald Trump’s administration, McConnell, in the midst of his six-year run as Senate majority leader, made clear that confirming judicial nominations of the conservative variety was a top priority. McConnell once vowed to “leave no vacancy behind.” He followed through on that pledge, even after Democrats in 2018 won a House majority, which complicated chances that legislation could be enacted with the White House and Senate in Republican hands.
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Partisan arrangements up and down Pennsylvania Avenue are now reversed. Democratic President Joe Biden is in the latter half of his White House term with a Democratic majority Senate, while Republicans control the House.
That’s a recipe for legislative gridlock but gives Biden the chance to burnish his legacy by nominating, and getting confirmed, record numbers of federal judges, all with the goal of reversing the conservative imprimatur placed on the federal judiciary by Trump, with key assistance from McConnell.
In the Biden administration’s first two years, the Senate confirmed 97 federal judges, surpassing the rate set by former Presidents Trump and Barack Obama during the same time in their tenure, according to U.S. Courts records. With 87 total judicial vacancies that Biden can fill, the Senate Judiciary Committee got back to work on Jan. 25 by holding confirmation hearings for five new federal district court nominees — with an additional business meeting on Jan. 26 to consider the nominations of nearly two dozen additional nominees.
In order to maintain record-setting Biden’s pace, the Biden administration must “start appointing to vacancies in red and purple states,” Russell Wheeler, a governance studies expert at the Brookings Institution, told the Washington Examiner in December. Wheeler referred to the Judiciary Committee’s “blue slip” tradition that gives senators the ability to, in effect, block judicial nominees for district courts in their home state.
In the 118th Congress, Senate Democrats hold a 51-49 majority over Republicans. Previously, in the 50-50 Senate, Democrats relied on Vice President Kamala Harris’s tiebreaking vote. Additionally, Democrats have a majority on the Senate Judiciary Committee, which processes nominations for federal judgeships, meaning they have more flexibility to get nominees to a full Senate vote without time-consuming procedural maneuvering and logistics.
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Marking the start of lawmakers returning to business, the White House on Jan. 23 renominated 17 of Biden’s previous federal judicial picks who weren’t confirmed in the previous Congress, along with three new names to the list.
Missing from the White House list were two candidates whose nominations became less viable due to headwinds last year. William Pocan, who was nominated to be a district judge in Wisconsin, was denied a blue slip by Sen. Ron Johnson (R-WI). Another nominee, Jorge Rodriguez, was also kept from succeeding David Hurd in New York’s Northern District due to Hurd’s decision to rescind his senior status.
The White House has also said a third candidate who wasn’t renominated, Kansas federal prosecutor Jabari Wamble, was not omitted for any serious reasons, noting the administration has “every confidence” in him as a potential future candidate. Biden, a former two-term vice president who chaired the Senate Judiciary Committee from 1987-95, has made diversity, both in career and ethnicity, a cornerstone of his judicial legacy. Only around 5% of his confirmations have been white men. And if Wamble is confirmed, he would become the first black Kansan judge on the U.S. Court of Appeals for the 10th Circuit.
University of Richmond School of Law professor Carl Tobias told the Washington Examiner one reason why Wamble wasn’t relisted could be due to the fact that the American Bar Association has yet to give him a rating, though the reason remains unclear.
While most of the present vacancies are on district courts across the nation, 11 of those spots are on influential circuit courts, which Senate Majority Leader Chuck Schumer (D-NY) has indicated will be a top priority this Congress.
As of Jan. 23, Biden has confirmed 28 circuit court judgeships, while Trump named 30 by the same time in his presidency. That gives Biden ample room and time to inch closer to Trump’s total of 54 appellate confirmations by the end of one term, which represented Trump’s most substantial impact on the federal judiciary below his three Supreme Court nominees that cemented the 6-3 conservative supermajority.
Although naming judges in conservative-friendly appellate courts can sometimes be a contentious issue, Judiciary Chairman Dick Durbin (D-IL) recently extended a hand of bipartisan support when it comes to handling nominees to federal district courts, saying Jan. 23 that he hopes the committee can work across the aisle to find selections Republicans will agree with.
“What we’re going to try to do, and I’ve had some success at this, is to go to the Republican senators in states where they have both senators and work with them to find a nominee that is acceptable to the White House,” Durbin said. However, the chairman mentioned he would deny Republican senators the ability to waive their blue slip if any nominee is discriminated against based on sexual orientation, ethnicity, or gender.
“Durbin is right to make an exception on district nominees if there has been discrimination,” Tobias said. “This is sort of like [Iowa GOP Sen. Chuck] Grassley’s creation of a circuit exception if Democrats refused to return based on ideology or politics.”
Tobias added that he was “cautiously optimistic” that Sen. Lindsey Graham (R-SC), with his new role as the ranking minority member, can help “GOP members to find nominees and fill vacancies in their state.”
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Already the offices of Sens. Ted Cruz (R-TX) and John Cornyn (R-TX) have been working closely with the White House to fill a high-priority vacancy on the U.S. Court of Appeals for the 5th Circuit, a person familiar with the matter told the Washington Examiner earlier this month.
The 5th Circuit is considered one of the most conservative appellate courts in the nation, with 12 Republican-appointed members and four Democratic-appointed members presently on the bench.