WASHINGTON — President Joe Biden has secured Senate confirmation for more than 80 of his nominees for federal judgeship, a breakneck speed that surpasses former President Donald Trump at this point in his presidency.
The Democratic-led Senate confirmed four new Circuit Court justices in the past two weeks, most recently U.S. District Judge Florence Pan to the powerful U.S. Court of Appeals for the DC Circuit, per a vote of 52 to 42, bringing Biden’s total to 83. By contrast, Trump had installed 69 justices by this point in his term.
Still, Biden is playing catch-up after Trump and Republican Senate Leader Mitch McConnell throttled back in the second half of Trump’s term and brought his total to 231 justices – mostly young conservatives poised to shape the law American for generations, including three Supreme Court justices who voted to overturn Roe v. Wade.
Trump’s total exceeds every first-term president since Jimmy Carter. The most recent two-term presidents, Barack Obama and George W. Bush, each earned 325 Senate-confirmed justices for district courts, circuit courts and the Supreme Court in eight years. (The numbers drop slightly when judges who were confirmed to a lower court and then elevated by the same president are counted as one.)
Biden chose an unusually diverse slate, with high shares of black, Latino and Asian American judges, and he emphasized candidates with a background as public defenders or civil rights lawyers, choosing fewer prosecutors and corporate lawyers.
But will Biden continue to overtake Trump and his predecessors?
That question will be answered by voters in major swing states in the upcoming midterm elections, as they decide which party will control the Senate for the next two years. The current 50-50 split means Republicans only need one net win to capture a majority.
If Democrats hold their ground, Senate Majority Leader Chuck Schumer, DN.Y., would continue to prioritize votes over Biden’s picks. He has about three months left in the current session to confirm more justices and has highlighted the judiciary to rally liberal activists around keeping the Senate in Democratic hands.
“I have made it clear that more President Biden judicial nominees will be a top priority for Senate Democrats, and we are delivering on our promise,” he told reporters. “We’ve come a very long way, but there’s still a lot of work to do.”
If Republicans took control, it would give McConnell, R-Ky., the power to allow or deny votes on any of Biden’s nominees. Last year he would not commit to holding a vote on a Biden nominee for the Supreme Court in 2023, if a seat opened up, and said it was ‘highly unlikely’ he would leave. the Democrat will fill a vacancy in 2024, a year-long presidential election.
McConnell’s allies say a GOP-led Senate would force Biden to choose justices acceptable to conservatives in order to secure floor votes. Many of its current candidates do not fit these criteria.
“Obviously, if we’re in the majority, he’ll have to consult with us on the names of the justices and other members of the executive,” Senate Minority Whip John Thune, RS.D., told NBC. News. “I guess that will affect and temper the types of candidates he sends, knowing he’s going to have to run it through a Republican Senate.”
“They’re going to have to be judges for you to expect a Republican Senate to get ahead,” he said.
McConnell has already used extraordinary tactics to keep liberal justices away from the courts and pave the way in the Senate to confirm more conservative judicial nominees under Trump. He made it a priority to steer the courts to the right, blocking President Barack Obama from filling a Supreme Court vacancy in 2016, citing the approaching election, before confirming Trump’s chosen Amy Coney Barrett. the week before the 2020 election.
McConnell’s tactics have brought big wins for Republicans, with the new 6-3 conservative Supreme Court recently revoking the constitutional right to abortion, expanding protections for gun owners and expanding religious rights.
Sen. Sheldon Whitehouse, DR.I., a senior member of the Judiciary Committee, said a GOP-led Senate would hand over the judicial nomination process “to whoever the dark backers of the Federalist Society want,” referring to an influential curator. judicial organization with leaders who controlled Trump’s judges.
Brian Fallon, who heads the progressive judiciary group Demand Justice, said a Republican-led Senate would “put an abrupt end to President Biden’s overhaul of the justice system.”
“The past two years have seen Biden set records in terms of the number of confirmed judges and have also seen him dramatically shift the paradigm of who gets nominated. All of that is in jeopardy in November,” he said. “If the Democrats fail to hold the Senate, that probably also means we can say goodbye to any hopes of Biden filling a vacancy that might unexpectedly arise on the Supreme Court.”
For now, the Democrats’ judicial focus is on the lame session.
Senate Judiciary Chairman Dick Durbin, D-Ill., said in an interview that he plans to advance more than 20 additional nominees this year.
“Hopefully we can do all of that, and more,” he said. “I think it will be a remarkable achievement if we do that.”
If he remains president for two more years, Durbin said, he intends to preserve the “blue” comity that allows senators to effectively veto the choices of district courts that oversee their home states. . Republicans ended the tradition of circuit judges in the Trump era and some liberals want to end it for district judges so GOP senators in red states can’t block Biden candidates for vacancies. .
But, Durbin said, “I’m sticking with it. We made it work.”