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Senate Democrats plan spree of judicial confirmations in lame duck

Liberal groups have pushed for Senate leadership to put more of President Joe Biden’s picks on the bench before the end of the year

Senate Judiciary Chair Richard J. Durbin talks with reporters in the Capitol in May.
Senate Judiciary Chair Richard J. Durbin talks with reporters in the Capitol in May. (Tom Williams/CQ Roll Call)

Senate Democrats plan to confirm dozens of President Joe Biden’s judicial nominees before the end of the year, even though Democrats in last week’s elections retained control of the chamber’s judicial confirmation process.

Senate Judiciary Chair Richard J. Durbin, D-Ill., the chamber’s majority whip, said the party wants to get through as many of the nominees as possible by the end of the year.

Nominations expire at the end of the Congress, so Biden would have to renominate the judicial picks and then start the Senate process over when the new Congress starts.

“I want to do this for my colleagues who have worked on these for months and they shouldn’t face more delay. We have more than 100 vacancies on the federal bench,” Durbin said.

Durbin acknowledged the chamber has a lot on its plate, including must-pass government funding and defense policy bills, and a planned vote on a bill to codify federal protections for same-sex marriage on Wednesday.

Still, he said Majority Leader Sen. Charles E. Schumer, D-N.Y., had requested he advance the court picks.

The Senate currently has 25 judicial nominees that have received a Judiciary Committee vote, and four of those would require a procedural Senate floor vote before confirmation.

Durbin said Tuesday he plans to advance more than a dozen others through the committee before Dec. 1.

The committee held a confirmation hearing Tuesday for six nominees. Thursday’s markup of nominees has 12 on the agenda, which because of panel traditions means they would get a committee vote at the next meeting.

There are 89 current vacancies on federal courts, with another 30 judges who have announced their future retirements, according to the U.S. Courts.

Outside liberal groups such as the American Constitution Society have pushed for Senate leadership to confirm more judges in the lame duck. In a fundraising pitch sent out Tuesday, the group argued for the chamber to confirm at least 30 before the end of the year.

“We were disappointed that the Senate took most of August and all of October off, rather than using that time to confirm these nominees,” the fundraising email said.

Sen. Sheldon Whitehouse, D-R.I., said whether the equally divided chamber can get through all those nominations “depends on a lot of unknowns.”

“The big unknown is Republican cooperation or obstruction,” Whitehouse said.

Even if a nominee is confirmed it can still eat up valuable Senate floor time. Although Senate Republicans and Democrats have both cut down on rules for the time and votes nominees require to advance, each one could take several hours of floor time to confirm.

Republicans are likely to oppose some of the nominees.

Casey Burgat, director of the legislative affairs program at George Washington University, said Senate Democrats have effectively used floor time this Congress to move judicial nominations.

The Senate has approved 84 of Biden’s judicial nominees, including Justice Ketanji Brown Jackson to the Supreme Court, Burgat said.

“They’ve been really efficient using the floor time to process those judges like a factory. It is going to continue and possibly get faster in the lame duck,” Burgat said.

Controlling the Senate next year makes it less urgent for Democrats to finish all judicial nominations, since they could confirm them in the next session of Congress. If Democratic Sen. Raphael Warnock wins his Dec. 6 runoff in Georgia, the 51-49 majority could smooth the process even more than in the current 50-50 Senate.

Burgat said Democrats do have one reason to be urgent, that is “a little bit morbid.” Democrats have no guarantee they will hold the chamber at 50-50 for the entire two-year Congress if Warnock loses his runoff, Burgat said.

Depending on the state, a death in the Senate Democratic caucus could mean a Republican replacement — handing Republicans control of the chamber.

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