The onus is on Senate Democrats to help President Joe Biden shatter records over his federal judicial confirmations before the new 2023 Congress is sworn in.
The president brought his total confirmations of federal judgment positions up to 78 this week after the Senate confirmed John Lee to the 7th Circuit Court of Appeals and Andre Mathis to the 6th Circuit, both of whom made history as the first Asian American and black man in their respective jurisdictions.
Comparing past records by Sept. 8 of a president’s second year in office, Biden has seen more federal judicial confirmations than any of the six previous presidents except for Bill Clinton, who had 83 by this time of his presidency, tying with Ronald Reagan’s record of 78
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But while Democrats and analysts lauded Biden’s progress on the federal judiciary last month by touting his record-setting 75 judges confirmed to federal courts by Aug. 8, which was more than any other president since John F. Kennedy, the advent of the congressional August recess set Biden back considerably, with only two confirmations last month.
“For whatever reasons, Majority Leaders George Mitchell and Mitch McConnell shortened the traditional near-month-long August recesses in 1994 and 2018, allowing respectively 11 Clinton and 15 Trump confirmations in August. Other recent presidents had between five and eight,” according to a recent report by Russell Wheeler, a governance studies expert with the Brookings Institution who has charted Biden’s judicial appointments since January 2021.
Although Biden is guaranteed to gain more confirmations ahead of the November midterm elections, given he has nominated a total of 141 judges since taking office, “Democrats clearly have some catching up to do to support ‘most appointments’ claims after two years,” Wheeler noted.
Progress toward confirming more of Biden’s nominees has already been underway this week as the Senate Judiciary Committee held a hearing Wednesday for six of Biden’s judicial nominees. Additionally, Senate Majority Leader Chuck Schumer (D-NY) scheduled a cloture vote on Judge Salvador Mendoza, Jr. for the 9th Circuit next week.
Carl Tobias, a law professor at the University of Richmond, told the Washington Examiner he thinks the pattern laid out this week by Democratic leadership in the Senate shows “a real commitment to prioritizing the appellate ones, what happened this week and will happen next week , and probably continuing on till they get everybody on the floor.”
By this time of Kennedy’s presidency in 1962, he garnered 108 appointed judges, occupying 27% of the authorized judgeships then in place. With Biden’s 78 confirmations, about 9% of them occupy the total number of federal judgeships.
If Biden hopes to compete with Clinton’s record by the end of year two, Biden needs 49 more confirmations to match the former president’s 126 two-year total.
Whether Democrats maintain a majority in the Senate or if Republicans regain control in the 2023 Congress remains to be seen. There is precedent for lame-duck confirmations, given former President Donald Trump’s 14 confirmations he gained in December 2020 after losing the presidential election along with his party’s loss of the House and Senate.
Regardless, Biden’s commitment to bringing diversity to the federal judiciary upstages all of his predecessors to date. As of July, 28% of his federal judicial confirmations were black, 22% were Hispanic, 18% were Asian, and 77% of his 121 nominees at the time were women, according to a report by the American Bar Association.
Tobias said the “real bottleneck” now is the number of hearings allotted by the Senate Judiciary Committee, noting that the committee’s head, Sen. Dick Durbin (D-IL), hasn’t scheduled enough hearing dates to clear every single one of Biden’s district court nominees.
“Right now, [Durbin’s] committed to every other week. That’s what he’s been doing. And it’s just not possible” to get through all of Biden’s judicial nominees,” Tobias said, noting Biden will “maybe” get through all the appellate court vacancies.
Durbin and Sen. Chuck Grassley (R-IA) were reportedly in talks in late July to schedule more hearing dates, though it remains to be seen whether those negotiations will come to fruition at a time when Biden needs to cover more ground to top Clinton’s record.
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If Republicans do prevail in taking the Senate after the midterm elections, the judicial confirmation process “will grind to a snail’s pace if Republicans have a Senate majority in the 118th Congress,” Wheeler wrote.
Lame duck or not, Biden’s commitment to bringing diversity to the federal judiciary upstages all of his predecessors to date. As of July, 28% of his federal judicial confirmations were black, 22% were Hispanic, 18% were Asian, and 77% of his 121 nominees at the time were women, according to a report by the American Bar Association.