President Joe Biden and Democrats’ control of Congress in his first two years in office ushered in sweeping gains for federal judicial appointments, but progress toward offsetting the Trump administration’s impact on the courts faces steep odds in Republican-dominated Southern states.
So far, Biden won confirmations for 97 appointments to U.S. district courts, appeals courts, and the Supreme Court over the past two years. For the comparable two-year period, President Donald Trump advanced his goal to transform federal courts with the help of then-White House counsel Don McGahn and then-Senate Majority Leader Mitch McConnell, naming 85 judges.
Trump’s total appointments in four years amounted to 231, a number that could be difficult for Biden to reach if stalemates continue in GOP-controlled localities and given the disproportionate spread of district court vacancies in states such as Florida, Alabama, Louisiana, and Texas.
BIDEN OUTPACES TRUMP AND OBAMA WITH 97 FEDERAL JUDICIAL NOMINEES BY END OF SECOND YEAR
The Administrative Office of the U.S. Courts reported that as of Jan. 12, there were 87 vacancies on federal district and appellate courts. Biden has assigned nominees for nearly half of those vacancies but is still struggling to name replacements in several Southern states.
“All of these seats are deeply important to us. We care about all of these vacancies,” Paige Herwig, senior counsel to the Biden White House, told CNN this week. “It’s not a secret that a large number of vacancies are in states with two Republican senators. But we are always here in good faith. We are here to work with home-state senators.”
In accordance with the Constitution’s terms, a president seeks the “advice and consent” of Senate judicial appointments. There’s a traditional influence home-state senators exert in the president’s selection of district and appellate court nominees known as the “blue slip,” even to the extent of blocking a disfavored selection. But in 2017, then-Senate Judiciary Committee Chairman Chuck Grassley (R-IA) demoted the blue slip for appellate nominations.
Republican-led states, including Florida and Louisiana, share the most openings with no nominees pending, which is four vacancies per state. Texas maintains three vacancies with no nominees pending, and Alabama maintains two, one opening dating to mid-2020, with no nominees offered.
The offices of Sens. Ted Cruz (R-TX) and John Cornyn (R-TX) have been working with the White House on U.S. attorney and judicial nominations for the past year with a priority to fill the vacancy on the U.S. Court of Appeals for the 5th Circuit, a person familiar with the matter told the Washington Examiner.
The 5th Circuit is considered one of the most conservative appellate courts in the nation, with 12 Republican-appointed members and four Democratic-appointed members presently on the bench.
And Clare Lattanze, a spokeswoman for Sen. Rick Scott (R-FL), said the senator “welcomes an open, good faith dialogue with the White House” to ensure that any of Biden’s nominees to the state’s federal courts will respect the limited role of the judiciary and would abstain from legislating from the bench.
“With substantial prior experience appointing judges to the Florida courts as governor, Sen. Scott is best positioned to offer insights and recommendations of candidates in the state who will faithfully serve the U.S. Constitution and respect the separation of powers as a federal judge,” Lattanze said.
But while White House officials and lawmakers in Texas and Florida are in talks to fill some vacancies, other states, such as Alabama, have received nothing but “radio silence,” according to Ryann DuRant, a spokeswoman for Sen. Tommy Tuberville (R-AL).
DuRant told the Washington Examiner that Tuberville’s office hasn’t heard from the Biden administration since early 2021 on the prospects for coming up with an agreeable nominee for the state’s pair of vacancies. “When the White House is ready to move forward on Alabama judicial nominees, Sen. Tuberville welcomes the opportunity to discuss as a part of his role to provide advice and consent,” DuRant added.
A representative for Sen. John Kennedy (R-LA) declined to comment.
While the Administrative Office of the U.S. Courts estimates another 20 vacancies by 2023, nearly a third of those are located in Southern states. Liberal judges who are weighing retirement could face the difficult dilemma of hoping Biden can successfully name their replacement or decide against stepping down during the remainder of his presidency.
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During Trump’s term, Republican allies were aligned in the strategy of encouraging judges who are considering retirement to make the decision to step down. For example, Grassley once said in 2018: “If you’re thinking about quitting this year, do it yesterday.”
The Washington Examiner contacted members of the White House counsel for a response.
