President Joe Biden is on a successful spree of federal judicial confirmations during the first year of his presidency, a streak prompting Senate Republicans to amplify efforts to offset his pace.
With 62 nominations and 28 confirmations to federal judgeships as of Dec. 10, Biden’s success can largely be attributed to his targeting of “states with no Republican senators or courts with no senators at all,” Russell Wheeler, a governance studies expert with the Brookings Institution, told the Washington Examiner.
The strategy has allowed the White House to secure confirmations quickly, with little partisan resistance. However, recent hearings within the Senate Judiciary Committee have shown his selections in GOP-dominated states facing significant resistance.
Biden’s Nov. 17 nomination of Memphis attorney Andre B. Mathis to the U.S. Court of Appeals for the 6th Circuit faced criticism from Tennessee’s two Republican senators, Marsha Blackburn and Bill Hagerty, who complained in a joint statement last month that the administration disregarded the tradition of “substantively consulting” with home-state senators on judicial nominees.
While the pair of Tennessee senators raised issues with Biden’s process, the 50-50 Senate, with Vice President Kamala Harris’s tiebreaking vote, likely won’t thwart the confirmation of the nominee.
“Once [Biden] starts getting nominations into courts that don’t have Democratic senators or no senators at all, that very slim majority may be even more in danger even before we get to January 2023,” Wheeler said, noting that GOP lawmakers have sustained confidence in taking back the Senate chamber after the midterm elections.
BIDEN RIVALS TRUMP FAST CLIP OF FEDERAL JUDGE CONFIRMATIONS
During former President Donald Trump’s administration, then-Senate Judiciary Committee Chairman Chuck Grassley ended the tradition of honoring the “blue slip” rule for circuit judges. Before, if a senator didn’t signal support of a nominee by returning a blue slip document, that nominee typically would not advance. Biden has modeled his mode of confirming judges based on the same strategy employed by Trump, who confirmed 226 federal judges with the help of then-Senate Majority Leader Mitch McConnell.
With the present Democratic Chairman Dick Durbin showing no signs of reverting back to the traditional standard of consulting state senators over federal judicial nominees, GOP members on the committee have been digging into past rhetoric by Biden’s nominees and have attempted to paint his selections as too liberal and questioned whether the nominees’ past comments signal any bias worthy of disqualification.
“I know that I’ve crossed the line from time to time,” said attorney Dale Ho, a judicial nominee for the Southern District Court of New York, who was grilled earlier this month by Republican committee Sens. Ted Cruz and John Kennedy over past public comments the pair alleged signify an inherent bias from the lawyer. “I regret it because I think it’s contributed to the coarseness of our discourse overall.”
Republicans on the panel invoked a similar tactic in October when they brought up Oregon attorney Jennifer Sung’s past signature on a letter opposing Justice Brett Kavanaugh’s nomination that decried him as “intellectually and morally bankrupt.” While the GOP can attempt to slow the process, any attempt to block confirmation is futile because Democrats can advance judges with a simple majority vote.
The Senate Judiciary Committee was deadlocked 10-10 along partisan lines in recommending Sung to the 9th U.S. Circuit Court of Appeals, but Democrats used Harris’s vote to break the tie and allow her to clear the committee. Republican resistance to Sung’s nomination marked the first time a Biden nominee required a floor vote.
The recent spate of conservative counters against Biden’s nominees is likely a reaction to the fast pace he is confirming judges compared to past presidents — as of Dec. 10, 46% of Biden’s nominees were confirmed, compared to Trump’s 26% of confirmed nominees around a similar time in 2017, according to data provided to the Washington Examiner by Wheeler.
Democrats are aware of the narrow advantage the party maintains in the Senate, and if Republicans take the majority, the effects would severely inhibit Biden’s ability to appoint judges in the last two years of his term.
Wheeler said Democrats are “hurrying” to get as many judges appointed as they can before a possible majority switch in either the House or the Senate, adding, “What they’re doing basically is replacing Democratic appointees of other Democratic appointees, not shifting the ideological balance too much, but they’re getting younger people in place.”
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“In the final two years of the Obama administration, after the Republicans took control of the Senate, the chamber confirmed two circuit and 18 district judges,” Wheeler said. “And that’s way fewer confirmations in the final two years of the W. Bush, Clinton, and Reagan administrations.”
Trump appointed 54 appeals court judges and 174 district court judges in his single term, while former President Barack Obama appointed just one more appellate judge, 55, during his two terms in office.
