Senate Democrats plan to make judicial nominations a priority this Congress, kicking off the first full session week with an expanded 51-seat majority that will make it easier for them to sweep President Joe Biden’s picks onto the bench.
About two dozen judicial nominees are on the Senate Judiciary Committee agenda for its business meeting Thursday, the first of this Congress. The White House renominated those picks after their bids failed to cross the finish line in the previous Congress.
And the Biden administration has announced two slates of new nominees, saying in an announcement last week that Biden “continues to move rapidly to fill judicial vacancies.”
On Monday, Senate Judiciary Chair Richard J. Durbin of Illinois struck a bipartisan tone on federal district court nominees, since a tradition on that panel means Republican senators still hold great sway over who gets nominated from their home states.
“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.
Durbin said he did that in the Northern District of Illinois when Donald Trump was president. “It can happen,” he said. “So I’d like to see some bipartisanship in that.”
Senators are returning to session with 87 total judicial vacancies, according to the Administrative Office of the U.S. Courts.
Most of the openings are on district courts scattered across the nation, but about a dozen of those spots are on influential circuit courts, which Senate Majority Leader Charles E. Schumer of New York has indicated will be a top priority this Congress.
The Biden administration secured more than 90 lifelong judicial confirmations during the first two years of his administration, passing the rate set by former Presidents Donald Trump and Barack Obama during the same time in their tenure, according to U.S. Courts records.
Despite that pace, the administration hardly has been able to confirm judges to federal district courts in states with two Republican senators. A Judiciary Committee tradition known as the “blue slip” process gives senators the ability to in effect block judicial nominees for district courts in their home state.
About two dozen district court vacancies are in states represented by two Republican senators last Congress. Several of those states have multiple district court vacancies, including Louisiana, Texas, Alabama and Florida.
The blue slip tradition faces sharp criticism from advocates such as Demand Justice, a progressive judicial advocacy group that says Republicans are willing to use the practice in bad faith to stop nominees.
Rakim Brooks, president of the progressive Alliance for Justice, said that certain Senate Republicans might never sign off on a Biden district court nominee for their home state, no matter how moderate the individual.
“These are not, sort of, garden-variety Republicans,” Brooks said. “They have become ever more extreme about the kinds of nominees that they are willing to put on the bench.”
Durbin has said he’s going to respect the tradition but would suspend the practice if he sees it being used to discriminate against a nominee over their race, gender or sexual orientation.
“I’ve not been tested on this yet,” Durbin said at a recent Chicago Sun-Times event. “It’ll be a tough thing to live up to. But I wanted to make that exception possible.”
Diversity remains a throughline in Biden’s approach to judicial nominees, with the White House putting forward nominees with a wide range of personal and professional experience.
Experts on the judicial confirmation process say the 51-member majority will give senators a quicker and smoother procedural path to confirmation.
Last session, the 50-50 Senate and the evenly split Judiciary panel made processing judicial nominations more difficult, said Daniel Smith, who previously worked as New Jersey Democratic Sen. Cory Booker’s chief counsel on the Judiciary Committee.
In certain circumstances, a discharge petition had to be used to get nominations moved out of committee and to the Senate floor, eating up additional floor time, said Smith, of counsel in the Washington office of Gibson, Dunn & Crutcher.
But now, Democrats will have a majority on the Senate Judiciary Committee and have more flexibility to get nominees out without a discharge petition, Smith said.
“Which will in turn allow the Senate to process judicial nominations more quickly,” Smith said. “I think we should underscore that attendance is still going to be really important and members are going to have to be there.”
Last session, Democrats had a small margin for error when it came to judicial nominations, said John P. Collins, a visiting associate professor at the George Washington University Law School.
With the new Senate power dynamics, it’s unlikely that nominees will get stuck in committee, Collins said. Plus, past nominees who have been stuck in committee should be able to get out, he added.
There could also be more floor time in this Congress to focus on confirming judges, said Collins, who researches judicial nominations and court administration.
“The Senate passed a lot of legislation in the last two years and still managed to confirm a record number of judges,” Collins said. “So without being bogged down with that kind of stuff, they should have a much cleaner path to confirming judges at an even more rapid pace.”
There have been signs of some cooperation, with a White House announcement last week that Judge Amanda Brailsford would be nominated to fill a district court seat in deep-red Idaho.
Sens. Jim Risch and Michael D. Crapo, both Republicans from Idaho, came out in support of Brailsford. A news release on Risch’s office website said the announcement came after negotiations with the White House.
Brailsford, who attended the University of Idaho College of Law, serves on the Idaho Court of Appeals.
“After vetting and presenting the administration with our shortlist of outstanding candidates for District Court Judge, I congratulate Judge Brailsford on her well-deserved nomination,” Risch said in a news release.