President Joe Biden will keep up the pace of confirming a diverse set of judicial nominees with Democrats retaining the Senate — setting the stage for Biden to reach his cornerstone achievement of reforming the judiciary.
As Republicans appear favored to take control of the House, Biden’s legislative agenda for Congress could be on ice. But with Democrats in control of the Senate, and possibly even reaching 51 seats when the Georgia Senate race heads to a runoff next month, the party will be guaranteed to make confirmations of Biden’s judicial nominees.
“There’s a big difference between a 50-50 Senate and a 51-49 Senate for the functionality of the Judiciary Committee and the Foreign Relations Committee,” Sen. Chris Coons (D-DE), a member of the judiciary panel, told the Washington Examiner. “Simply having control of the Senate means we have the ability to continue moving forward the personnel who will represent us and shape our laws.”
A RED WAVE WOULD CRIPPLE BIDEN’S ABILITY TO RESHAPE THE JUDICIARY
Before the Nov. 8 midterm elections, progressives urged Senate Judiciary Committee Chairman Dick Durbin (D-IL) to move with haste to confirm more of Biden’s outstanding nominees for fear that Republicans could gain back the Senate and bring confirmations to a crawl for the next two years.
Biden’s pace for confirming judges has been roughly in line with former President Donald Trump‘s legacy by the second year of their respective terms in office. The president has so far amassed 84 confirmations, while 57 nominees remain in waiting along with 89 total vacancies. He’s also made strides for career and ethnic diversity in the judiciary, with just 5% of his 75 total confirmations as of August being white men.
“I think all we can say is that they’ve been pretty aggressive and trying to get appointments through, and there’s no reason to think that’s going to change,” Russell Wheeler, a governance studies expert with the Brookings Institution, told the Washington Examiner, noting that Democrats might be presently more focused on their legislative agenda given the limited time remaining before the House likely flips to GOP control next year.
Biden’s judiciary progress won’t falter if his party fails to change the 50-50 split in the Senate that has been settled by Vice President Kamala Harris‘s tiebreaking vote for the past two years, though a win for the party in Georgia would give it a 51-49 edge in the chamber and give the Democrats an added buffer.
For example, a 50-50 majority means committees have an even share of Democrats and Republicans, meaning attendance is more often required from the GOP to push forward on judicial nominees and forces Democrats to take procedural steps on the Senate floor if a committee deadlocks on a nomination. If incumbent Sen. Raphael Warnock (D-GA) defeats his Republican challenger, Herschel Walker, in the runoff, Democrats could get nominees out of committee with a majority vote.
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Wheeler also suggested that if a Republican such as Alaska Sen. Lisa Murkowski is able to win her upcoming ranked choice runoff election, retaining her seat could provide an additional buffer for Biden’s judicial nominees, as she has voted to confirm 64 of his 84 selections thus far, including his Supreme Court nominee, Justice Ketanji Brown Jackson.
Whether it’s the prospects of maintaining Georgia’s Senate seat or keeping Murkowski, “there’s just a little bit of a cushion there that they’d be crazy not to want to have,” Wheeler contends.
