As we head into the final year of his first term, President Biden is 21 judicial appointments behind former President Trump’s pace of 187 confirmed judges after three years. This is not for a lack of nominations by the White House, but for a lack of consistent political will by the Senate majority in prioritizing judges. As a result, Senate leadership is starting the new year with this challenge before it: to confirm upwards of 70 judges in twelve months to ensure that Biden matches, or better yet exceeds Trump’s total of 234 confirmations in four years.
In addition to the total number, the Senate needs to finally eliminate the blue slip to prevent the further bifurcation of our federal judiciary into conservative courts and progressive courts. For the Senate and the White House to truly herald the progress they have made in diversifying the federal judiciary, they need to ensure that the diversification of courts is not happening only in blue states. To be a multiracial democracy, we need a nationwide multiracial judiciary.
Let’s start with the pace of confirmations. For nearly two years, President Biden was ahead of Trump on judicial appointments. The White House has consistently churned out nominations at a pace that could have kept ahead of Trump had the Senate done its part. Instead, the Senate failed to adequately prioritize judges in 2023 and made no effort to expand the calendar.
During much of the Spring, the Senate had attendance issues that contributed to lower confirmation numbers. However, that does not explain why the Senate took all of August off or confirmed only four to seven judges in June, July, September, October, and December last year. The Senate has confirmed as many as 12 judges in a single week and yet failed to confirm that many in any month of 2023.
The Senate will have to recess for part of the fall to enable Senators to campaign before Election Day. Factoring this in, the Senate needs to expand the calendar in early 2024 to maximize confirmations. Senate leadership, which controls the calendar, should set an immediate expectation that the Senate will be in session five days a week and will stay in session through the summer, including into August.
Last year, the Senate did not confirm a single judge until February 9th. This cannot be repeated in 2024. While nearly all judicial nominees were “returned” to the White House at the end of last year and will need to be renominated this month, the White House is expected to expedite this process. The Senate needs to take on the same sense of urgency. It is encouraging that Senate Majority Leader Schumer already scheduled a January 8th cloture vote for John Kazen, nominee for the Southern District of Texas.
The other challenge for 2024 is to fill more vacancies in red states. Increasingly, our country is fracturing into two judicial systems, with administrations prioritizing judicial vacancies in states that align with their party affiliation. This is a new and worrisome trend.
When I was in the Senate, there was the occasional controversial judicial confirmation. Certainly, Supreme Court confirmations were often more contested, and votes were closer. But for the most part, district and circuit court confirmations were broadly bipartisan and Senators, regardless of party, cooperated with the White House on filling home state vacancies. As a result, an administration’s judges were less relegated to certain states.
The Trump administration and now the Biden administration – and their corresponding Senates – have set a different precedent, wherein a President’s ability to fill certain vacancies depends on the party affiliation of home state Senators. This leads to more ideologically homogenous courts and increased and reliable forum shopping, as we are seeing with conservative litigants steering litigation to single-judge districts in Texas, with the conservative Fifth Circuit awaiting any appeals.
The blue slip is a significant contributor to this, enabling home state Senators who oppose the President to effectively block district court vacancies in their state. This deters administrations from even nominating folks for vacancies in states with opposing-party Senators because they know they will have to compromise on whom they nominate and may not be able to get a nominee confirmed regardless, so why bother. This is not tenable for our judiciary.
The solution is simple: eliminate the blue slip for district court vacancies, as it was previously scrapped under the Trump administration for circuit court nominees. To be clear, the blue slip will be eliminated for district court vacancies, it is just a question of when. If Senator Durbin insists on keeping the blue slip, I fully expect Republicans to scrap it when they next control the Senate and the White House and find the blue slip to be a hurdle in their packing the courts with conservative ideologues.
If Senator Schumer and Senator Durbin, Chair of the Senate Judiciary Committee, are serious about balancing the courts, as they vowed to do early in the Biden administration, they need to do two things early this year: expand the Senate calendar and eliminate what remains of the blue slip. It will be inexcusable if we get to the end of 2024 and nominations are left on the table and vacancies unfilled because the Senate chose not to devote the necessary time to confirming judges early in the year or because home state Senators have been allowed to hijack vacancies.