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Senate Democrats look to close judicial confirmation gap

Biden close to matching pace of Trump appointments at this point in presidency

Senate Majority Leader Charles E. Schumer, D-N.Y., set up procedural votes this week on three judicial nominations.
Senate Majority Leader Charles E. Schumer, D-N.Y., set up procedural votes this week on three judicial nominations. (Bill Clark/CQ Roll Call)

Senate Democrats have teed up floor action this week on three more of President Joe Biden’s judicial nominations, whose confirmations would catch up to the pace set by former President Donald Trump at this point in his presidency.

But the Biden administration still faces a tricky confirmation process to surpass Trump’s record overall on filling the federal bench, in part because Democrats hold a slim 51-49 advantage and Sen. Joe Manchin III, D-W.Va., has put a caveat on his support for Biden judicial nominees.

Majority Leader Charles E. Schumer, D-N.Y., readied three district court nominees for procedural floor votes as early as Monday.

If the Senate confirms three more nominees, Biden will have matched Trump at this point with 193 lifetime judicial confirmations, according to tracking from groups Alliance For Justice and The Leadership Conference on Civil and Human Rights.

Biden needs to secure 44 lifetime judicial confirmations in the roughly nine months left in his term to match the 234 such confirmations of Trump appointees. Biden has made 23 such nominations that are in the Senate confirmation process.

The White House has been effective in its push to diversify the federal bench while also making inroads in filling district court vacancies in certain deep red states, spots that can require cooperation with home state Republican senators. The administration has appointed judges in Texas, Louisiana and Oklahoma.

Despite those confirmations, more than 20 current district court vacancies remain in states with two Republican senators as of Friday morning, according to the Administrative Office of the U.S. Courts. Overall, there are 74 lifetime judge spots either vacant or set to become vacant in the future.

Schumer and Senate Judiciary Chair Richard J. Durbin are likely to push for judicial confirmations deep into the election year, said Russell Wheeler, a non-resident senior fellow at the Brookings Institution who focuses on judicial confirmations.

Trump overall had a little more breathing room in the Senate than Biden, Wheeler said, noting that the Democratic president now must contend with Manchin’s newly announced stance that he will not support Biden judicial nominees unless they have support from at least one Republican.

Jake Faleschini, justice program director at the progressive Alliance For Justice, said Manchin’s comments will make every vote “a little bit more challenging,” but it is not “an earth-shattering revelation” given his past voting record.

Although the West Virginia Democrat has not voted to confirm a party-line judicial nominee since last November, his public comments could embolden Republicans to be more aggressive in trying to block party-line nominees, with conservatives knowing they will have Manchin on their side in those situations, Faleschini said.

“It’s a little challenging in that respect because I think it really emboldens Republicans to be completely obstructionist, and to know that they’ll have Manchin on board with them if they do that,” Faleschini said.

“And so it really empowers the kind of right-wing judicial infrastructure to go hard on every single nominee that they possibly can in order to peel off any other Democrat that they can on those votes,” he said.

The dynamic with Manchin has appeared to contribute to the confirmation trouble facing Adeel Mangi, a nominee for the U.S. Court of Appeals for the 3rd Circuit who would be the first Muslim American to serve on a federal appeals court.

Other judicial nominees awaiting floor votes advanced out of the Judiciary committee on a party-line basis, including district court nominees Mustafa Kasubhai, Amir Ali and Sarah Russell.

Election-year dynamics could bring other challenges as well, such as scheduling time for confirmation votes in Washington while senators running for reelection have campaign duties.

The Senate is not scheduled to be in session for almost all of August. It’s also scheduled to leave town in late September and not return until November after the 2024 election.

“One big issue is just the schedule of when they’ll be in town,” said Carl Tobias, a professor at the University of Richmond School of Law who follows judicial confirmations.

Democrats have been eager for Biden to make judicial appointments to counter the push from then-Senate Majority Leader Mitch McConnell and Trump to install conservative-minded judges to the federal courts.

Democrats have found success in diversifying the federal bench under the Biden administration, a push from the White House that’s been praised by progressive judicial advocates.

Overall, 123 confirmations so far were of people of color and 121 confirmations were women, according to a memorandum from the Leadership Conference. A total of 78 confirmations were of women of color.

Almost 45 percent of the lifetime confirmations have been people who were public defenders, civil rights lawyers or who “otherwise dedicated a significant portion of their careers to protecting people’s civil and human rights,” according to the memorandum.

Lena Zwarensteyn, a senior director at the Leadership Conference, lauded the Biden administration’s picks, both in terms of demographic diversity but also professional diversity. But she also says there’s still more to be done.

“Unfortunately, there’s a lot of milestones we still need to break that we are breaking still in 2024,” she said.

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