By Russ Feingold, President of the American Constitution Society and former United States Senator from Wisconsin
As the 118th Congress is gaveled in this week, there are 111 current and known future vacancies on the federal courts. On top of those, there are an additional 175+ judges who are eligible or will become eligible to take senior status over the next two years. That’s nearly 300 federal judgeships – over a third of the 870 active federal judges – that are or could become vacant over the course of this Congress.
President Biden has proven his commitment to the federal courts, both in terms of his pace of nominations and the unprecedented diversity of his nominees. For its part, the previous Senate did a relatively good job keeping up with President Biden’s pace; however, it left a hefty backlog of nominees for the new Senate to confirm. This backlog is in part the result of inefficiencies in the Senate’s own rules, which have enabled Republican Senators to obstruct or block the filling of certain vacancies.
Last month, Senate Majority Leader Schumer said that come the New Year, “The pace [of confirmations] will accelerate significantly.” This sentiment, while encouraging, is likely to only apply to existing nominees.
Senator Schumer admitted, in the same interview, that the Senate already lost “many, many, many days” over the past two years due to Republicans gaming the confirmation process. Expect the games to escalate as the legislative process grinds to a halt with a split Congress and with more focus placed on judges. If past is prologue, Senator McConnell and his caucus will use every tool in their toolbox to game the judicial confirmation process in their favor.
This is no time for games. Each federal judge handles hundreds of cases, affecting people’s lives, their fundamental freedoms, and the guardrails of our democracy. Leaving vacancies to collect dust blocks access to justice and creates even further delays and obstructions to our judicial system.
If President Biden and Senator Schumer want to fill vacancies across the federal judiciary, and not just in states with friendly Senators, the Senate needs to make three key reforms to its rules.
First, the Senate should do away with blue slips. Once upon a time, there was bipartisanship in the Senate, including on judges. Once upon a time, Senators of the opposing party to the President would work with the White House to fill vacancies. Those days, for the most part, are long gone.
Back in August, I wrote that the Senate should be prepared to do away with blue slips if Republicans obstruct the process. I’ve seen enough gamesmanship to be convinced, the Senate should scrap this abused rule now.
In previous Senates, blue slips were used to give deference to home-state Senators on vacancies within their state. Now, they are used to stall the process or block a vacancy entirely. Enough with the games. Do away with blue slips.
Second, the Senate should reduce the floor time dedicated to individual nominees. Consider this, circuit court nominees require 30 hours of post-cloture debate time. Thirty hours! This severely reduces the number of nominees that the Senate can vote on in a week. Senate floor time is precious. It is inefficient and unnecessary to require thirty hours for a single nomination. The Senate should amend its rules to provide two hours to any lower federal court nomination, whether circuit or district.
Further clogging the confirmation process is the rule that permits only one nomination to be considered at a time. When the Senate is processing dozens of nominations at any given time, this current setup becomes its own obstruction. Just as the Senate Judiciary Committee can have multiple judicial nominees in the same confirmation hearing, the Senate is fully capable of considering multiple confirmation votes at the same time. The Senate should amend its rules to enable multiple nominations to be considered simultaneously.
I can already hear the concerns with these changes. If the Senate makes these changes now, a future Republican-controlled Senate could abuse the new rules and ram through extremist candidates. For folks with that concern, I will simply say this: Senator McConnell will do it anyway.
Remember, this is the same Senator and party who gamed the confirmation process to reduce the Supreme Court to eight for over a year. The same Senator and party who jammed through a Supreme Court nomination while voters were casting their ballots for Joe Biden and to change the party in control of the Senate. They would have no qualms about making these rule changes.
The question should not be what Senator McConnell would do in a hypothetical future. The question should be what will this Senate do to ensure it can consider and vote on all of President Biden’s nominations, fill as many federal court vacancies as possible over the next two years, and do its part to improve access to justice for the American people.
The Senate’s rules are routinely amended. Unlike legislation, rule changes require only a simple majority vote. Just in the last decade, the Senate has repeatedly amended its rules to expedite judicial confirmations, including eliminating the filibuster and reducing the post-cloture debate time for district court nominees. The Senate should make these changes in its rules now and set itself up to make history in filling federal court vacancies over the next two years.
