Priority 1: Judges

November 22, 2022

The midterm elections have preserved Democratic control over the U.S. Senate. Though the U.S. House may be under Republican control and Democrats might not have a wide margin in the Senate, this will not preclude them from doing their most important duty: confirming judges.

Judicial confirmations are arguably the most important duty of the Senate. Federal judges serve for life and once in office, they are almost completely insulated from all pressures, barring impeachment and removal, which last happened in 2010.

They also exert great influence on daily life. It was the Supreme Court that legalized gay marriage nationwide and that ripped away reproductive freedom for millions of women. It was a federal judge that halted the Biden administration’s student loan forgiveness plan. It was a federal judge that granted Donald Trump his request for a special master and another that prevented domestic abusers from having to surrender their weapons. These are only some of the most recent cases.

With 890 authorized federal judgeships and 88 current vacancies, with 30 future vacancies pending, there is still a lot of work to go in filling these vacancies.

“We are very pleased with the 85 judges that have been confirmed so far during this administration, but there is more work to be done,” said Kimberly Humphrey, legal director for federal courts at the Alliance for Justice, a progressive organization advocating for more judicial confirmations.

These 85 judges confirmed under the Democratic Senate majority include Judge Florence Y. Pan, who serves as a circuit judge of the United States Court of Appeals for the District of Columbia Circuit, widely considered the most influential court in the country, second only to the Supreme Court and Andre B. Mathis, circuit judge of the United States Court of Appeals for the Sixth Circuit, confirmed after contentious hearings that involved objections from his home state senators. 

Of course, this also includes Justice Ketanji Brown Jackson, President Joseph R. Biden’s pick to serve on the Supreme Court, who was confirmed to replace the retiring Justice Stephen Breyer and took her seat on the court in June. Her appointment in particular was history-making and, as a member of the highest court in the land, it will have more influence than any other single appointment made by the president.

Once the remaining legislative priorities of the 117th Congress have been passed in the lame duck session, the Senate, under majority leader Chuck Schumer of New York and Dick Durbin of Illinois, who is both the majority whip and the Judiciary Committee chairman, must turn its attention firmly towards confirming as many judges as they can and ensuring that the federal judiciary has as many Biden appointees as can possibly be confirmed.

Ironically, this takes a page from Republican leader Mitch McConnell’s book. The Kentuckian put a premium on judicial confirmations during his time as majority leader, confirming judge after judge while backed by the right-wing Federalist Society, a political group espousing Republican ideas that has produced many Trump-appointed judges. This has led to the federal judiciary being hijacked by inexperienced judges who issue meritless, blatantly partisan rulings, eroding public confidence in the judiciary and tearing at the fabric of American democracy.

The importance of the Senate runoff election being held in Georgia also comes in here. If Democrat Raphael Warnock wins re-election, it will hand Democrats a 51-49 Senate majority. This difference of a single seat may not seem like much, but Mr. Warnock’s hypothetical victory will allow Democrats to hold a majority on every Senate committee, including the Judiciary Committee. 

Right now, Senate committees are all evenly divided, reflecting the Senate’s 50-50 split. When committees deadlock, as the Judiciary Committee frequently does, Mr. Schumer must consume valuable floor time with a discharge petition, adding a procedural hurdle. A 51-49 majority would solve this problem.

During the 118th Congress, given the divided government that will occur, little legislation will stand a reasonable chance of being passed and taking up floor time. Thus, there will be more time for judicial confirmations. Mr. Schumer and Mr. Durbin must use all of their time and energy confirming judges, whether through scheduling more frequent Judiciary Committee meetings, pressuring the White House to nominate more candidates, or using lulls in Senate business to ram through judicial confirmations.

One of the most conducive methods towards furthering judicial confirmations will be continuing the reformation of the blue slip process, by which Senators from a nominee’s home state can block that nominee from being confirmed through returning a blue piece of paper, with no justification required. Already, this blue slip process has been changed for influential circuit court nominees. 

“As Sen. Durbin has previously pointed out, blue slips can too easily be used in a discriminatory way to block qualified nominees from diverse backgrounds. Senate Republicans also advanced 17 different Trump-nominated circuit court judges over the objections of their home state senators, decimating respect for the process. Senate Democrats have every reason to advance each and every nominee deserving of confirmation,” said Ms. Humphrey.

It is time for this to be fully extended to district court nominees, allowing the blue slip to be removed completely and ending rule by a minority of one.

Indeed, as Ms. Humphrey said, “Most cases don’t make it to the Supreme Court, and these lower court judges are essential for administering justice. We have repeatedly seen Trump-appointed judges circumvent democracy, protect former President Trump himself, or otherwise impose conservative policies and block President Biden’s policies.”

As soon as possible, the number one priority for the Democratic Senate majority must be confirming federal judges as efficiently as possible. The fate of the judiciary and the American people depends on it.

Ms. Humphrey said, “We look forward to two more years of the Senate Judiciary Committee vetting and advancing President Biden’s diverse and qualified nominees.”

The Byron G. Rogers Federal Building and U.S. Courthouse in Denver, Colorado. Charles Horowitz for Policy Reform Now

By Charles Horowitz