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So little Senate floor time left, so many Biden judicial nominees in limbo

'I fear the Senate has lost a vital opportunity to confirm as many as they could,' a former Democratic senator says

The E. Barrett Prettyman United States Courthouse in downtown Washington, D.C.
The E. Barrett Prettyman United States Courthouse in downtown Washington, D.C. (Bill Clark/CQ Roll Call file photo)

Numbers often tell their own stories in Washington, sometimes illuminating actions misaligned with previous statements. Numbers can be inconvenient that way.

Senate Democratic leaders left town last week, canceling a two-week October session before turning off the chamber lights, focused on a few.

Seventy-two was one they touted, the number of “yes” votes — a rare overwhelmingly bipartisan tally — on a sprawling stopgap spending measure that averted a pre-midterm-elections government shutdown.

Another was $1.8 billion, the amount that the continuing resolution included in emergency funding Democrats contended was needed to handle migrants who made it across the U.S.-Mexico border.

Yet another was $1 billion — that’s how much the CR included to help low-income households deal with winter heating bills at a time when natural gas prices are, like seemingly everything else, climbing.

But there is one number you did not hear much about on Sept. 29 amid the smell of jet fumes, as members prepared to head home for six weeks, filling the hallways on both sides of the Capitol complex: 44.

That is the number of President Joe Biden’s judicial nominations that are pending in the Senate, according to the Administrative Office of the U.S. Courts.

“We have accomplished a great deal so far, more than any Congress in recent memory,” Senate Majority Leader Charles E. Schumer said the afternoon of Sept. 29, announcing the next floor vote would be Nov. 14. “We still have much … to do, and many important bills to consider.”

He suggested the chamber will start next month with the fiscal 2023 defense authorization bill, saying doing so “will save us valuable [time] and enable us to get more done.”

He has a point about the coming year-end sprint: Clearing that mostly bipartisan measure relatively quickly, by Senate standards, will open floor time for legislation to change the Electoral College Act, a massive omnibus spending measure and other measures Schumer wants to clear before the 117th Congress expires.

“But members should be prepared for an extremely, underline extremely, busy agenda in the last two months of this Congress,” he added.

‘Skewed dramatically’

That to-do list, however, will not leave much floor time to process Biden’s judicial nominees, which is curious given Schumer’s statement on the matter earlier last month.

Schumer said on the floor Sept. 7 that he intended to prioritize judicial confirmations to “bring balance back to the federal bench, which under President Trump skewed dramatically … to the hard right.” Less than one month later, however, he canceled a planned two-week October session during which he could have processed more of Biden’s picks.

On the one hand, it looks as though Schumer has missed an opportunity to continue countering the Trump-Senate Minority Leader Mitch McConnell, R-Ky., remake of federal benches in their collective conservative likeness. But on the other, the race for the Senate, once considered by experts to be favoring Republicans, will be a photo finish.

Senate races in Georgia and Pennsylvania, according to recent polls there, have tightened, with the Democratic candidates’ leads shrinking.

Schumer’s move is a long-term play. After all, if his party holds the majority in the Senate, he can process a lot of judicial and executive branch nominees Biden sends him for the next two years, when the House is projected to be run by Republicans and there might be fewer opportunities for bipartisan legislation.

When Biden’s first-year pace is compared to those of his six most recent predecessors, Biden topped the charts with 81 Senate-confirmed judicial picks, according to data crunched in June by the Brookings Institution’s Russell Wheeler. But since Jan. 20, that pace has slowed.

“Of those predecessors, however, only [Ronald Reagan] had a lower percentage increase over his number of end-of-year-one appointments. … [Bill Clinton] had increased his number by 115 percent; Biden, by only 55 percent,” Wheeler noted in a separate blog post in September. “Things have not improved from Biden’s standpoint. As of Sept. 8 (by when the cloture votes will have produced floor votes), his number of confirmations will trail Clinton’s and match Reagan’s.”

The slowing pace is one reason Schumer has been under pressure from a handful of left-leaning groups to hit the gas pedal on judicial nominations.

“The full Senate must vote on these nominations and show the nation that an equal justice judiciary is possible because of your commitment to confirming outstanding jurists,” the Leadership Conference on Civil and Human Rights wrote to the majority leader on July 12. “Further delay will jeopardize efforts to create a stronger federal judiciary.”

“This pace is remarkable,” the group added. “Yet, there is significantly more progress to be made.”

American Constitution Society President Russ Feingold, a former Democratic senator from Wisconsin, has praised the judicial work but also urged Schumer to pick up the pace. “But we cannot rest on our laurels,” Feingold wrote Sept. 8. “There are still dozens of federal court vacancies and dozens of nominees awaiting Senate hearings and confirmation votes. We need the Senate to make judges a priority while they can!”

Zero for October

Given the pressure from the left, fueled by worries Republicans will control the Senate come January, there is but one question: Do advocates of a more aggressive confirmation schedule believe Schumer erred by not bringing the chamber back next week?

Feingold did not hold back in a statement to Roll Call this week.

“Given that no one knows the outcome of the midterms, the Senate should be maximizing this time when it is confident it can confirm President Biden’s diverse and qualified judicial nominees,” he said. “The Senate’s decision to not confirm a single judicial nominee in October is a lost opportunity to fill several of those vacancies.”

Brookings’ Wheeler said in an email to Roll Call that his read is “the plan may be to get hearings for at least some of them and then seek confirmations of a good number of district nominees who’ve had hearings when the Senate returns after the midterms.” The Senate Judiciary Committee does indeed have a nominations hearing scheduled for Oct. 12.

But just because Democratic leadership scrapped the October session doesn’t mean they are totally out of time.

“Even if the midterms seat a Republican majority next January, the Republicans in 2020 set the precedent for lame duck confirmations, approving 13 district judges after Trump had lost the election — and one circuit judge nominated on Nov. 17,” Wheeler noted.

A Schumer spokesperson did not respond to a message seeking comment on the majority leader’s strategy.

A spokesperson for the Leadership Conference on Civil and Human Rights said the group had nothing to add to its July letter to the majority leader. But, notably, the group did not give him cover for nixing the October session.

Democrats, including Schumer himself, have warned about the nearly 250 federal judges Trump and McConnell seated during the former’s term. So left-leaning groups are frustrated the Senate has not put more of Biden’s picks on courts from sea to shining sea.

Every nominee matters, they say, pointing to Aileen Cannon, a Florida-based District Court judge, who has sided with Trump several times in his fight with the Justice Department about hundreds of pages of classified and sensitive government-owned documents FBI agents found at Trump’s Mar-a-Lago resort in August.

“Recent months have demonstrated the difference that a single federal judge can have on the rule of law and our fundamental rights,” Feingold told Roll Call. “I fear the Senate has lost a vital opportunity to confirm as many as they could had they held votes in October, and the only way to remedy that is to make confirming judges the top priority when the Senate returns in November, regardless of election outcomes.”

The numbers don’t lie. And should Republicans win the Senate majority, the number of days left for Democrats to confirm those judges will get increasingly finite.

Editor-at-Large John T. Bennett writes a weekly column for Roll Call, parts of which first appeared in the subscription-only, and newly rebranded, CQ Afternoon Briefing newsletter.

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