Biden faces shrinking window for judicial nominations
President Joe Biden and Vice President Kamala Harris applaud Judge Ketanji Brown Jackson, left, as they arrive to deliver remarks on her historic Supreme Court confirmation. (Bill O'Leary/The Washington Post)
Senate Democrats are staring down a shrinking timeline to confirm more than two dozen of President Joe Biden’s judicial nominees, with President-elect Donald Trump warning Republicans to do all they can to block the effort.
If Democrats cannot confirm Biden’s judicial picks, Trump will have the chance to fill those vacancies with his own more conservative nominees. Trump made judicial appointments a priority during his first term in the White House, appointing 237 judges—including three Supreme Court justices—whose rulings have helped move the federal judiciary significantly to the right in recent years.
Returning to Capitol Hill on Tuesday night for the start of the lame-duck session, senators voted 51-44 to confirm April M. Perry as a U.S. district judge for the Northern District of Illinois. Another nominee is scheduled for a vote on Wednesday.
Twenty-six more judicial nominations are pending in the Senate—15 are waiting for a floor vote, while 11 are still being processed by the Senate Judiciary Committee.
On Sunday, Trump demanded that Senate Republicans refrain from helping their Democratic counterparts confirm judges, hoping to keep as many judgeships open as possible as he prepares to return to the White House and the GOP takes majority control of the upper chamber of Congress.
“… no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE,” Trump wrote on Truth Social.
Nearly all Republicans except Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) voted against Perry’s nomination. Collins told reporters that Trump’s comments did not influence her vote.
“This was a judge that had previously had been reported and had been waiting for a long time,” the moderate senator said, noting that Perry’s nomination was for a district court seat, not a Supreme Court one.
It is uncommon for presidents to push nominees through in the lame-duck session, but it happened during Trump’s final weeks in office four years ago. The Senate, which was under Republican control at the time, confirmed 14 Trump-nominated judges after Joe Biden was elected but before he took office.
No other outgoing president has had judicial nominees confirmed during this period in the past 20 years. But with the country deeply polarized and courts playing an increasingly influential role in all aspects of American life, Democrats are pledging to mount a similar effort before they lose power.
“Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame duck session given that we have a number of nominees on the floor ready for a vote, and others still moving through Committee,” a spokesperson for Senate Majority Whip Dick Durbin (D-Illinois), chairman of the Judiciary Committee, said in an email. “Chair Durbin aims to confirm every possible nominee before the end of this Congress.”
Sen. Peter Welch (D-Vermont), a member of the Judiciary Committee, said: “The clock is ticking and we’re going to be hell-bent on getting as many judges confirmed as we can.”
“That’s our job, and we’re going to be relentless in getting the work done,” Welch said in an email.
Court transparency groups also have weighed in, pressing Senate Democrats to move quickly and casting doubt on the potential independence of future Trump nominees.
“Every judicial seat in America matters for the protection of our rights and our communities,” Lena Zwarensteyn, senior director of the fair courts program and an adviser at the Leadership Conference on Civil and Human Rights, said in a statement Tuesday. “For our democracy and for our communities, the confirmation of judges now is both urgent and necessary to ensure we have more jurists across the country who will uphold the rule of law and advance equal justice.”
The 11th-hour sprint is a part of the outgoing administration’s effort to match or exceed the number of judges Trump appointed during his first term, while also nominating individuals who bring racial, ethnic, gender and professional diversity to the federal court system. Federal judges confirmed under Biden include more women, people of color and LGBTQ individuals than those nominated by any other president in U.S. history.
The Senate has confirmed 214 of Biden’s judicial nominees, slightly behind Trump’s total but still ahead of the first-term totals for Presidents Barack Obama, Bill Clinton, Ronald Reagan, George W. Bush and George H.W. Bush, according to a Washington Post analysis of data from the Federal Judicial Center.
Across the country, there are 30 federal court vacancies for which Biden has not named a nominee. Nearly all are in states with two Republican senators. The Senate’s “blue slip” tradition effectively gives lawmakers veto power over nominees they do not like, and the White House may not have prioritized those nominations for that reason.
After the president announces a nominee for a federal district court judgeship, the chairman of the Senate Judiciary Committee sends a blue form to the two senators in the nominee’s home state, seeking their approval. If a senator objects, the blue slip is either withheld or returned with a negative response. Advocates have called on Durbin to abandon the blue slip tradition, but he has not.
The nominees who have been approved by the Judiciary Committee and are awaiting a floor vote include Embry J. Kidd of Florida, Jonathan E. Hawley of Illinois and Adeel A. Mangi, who was nominated last year to the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit and would be the nation’s first Muslim American federal appeals court judge. He has faced strong opposition from Republicans and some Democrats over his ties to various groups, including a law school center for Muslim, Arab and South Asian Americans. The White House has called efforts to block his nomination a “cruel, Islamophobic, smear campaign.”
Carl Tobias, a law professor at the University of Richmond, says Democrats may have a better shot at confirming Mangi in the lame-duck session because some lawmakers—such as newly reelected Sen. Jacky Rosen (D-Nevada)—will face less pressure to vote against him. Democrats and the independents who caucus with them hold 51 seats in the Senate. Judicial nominees need a simple majority to be approved.
Outgoing Sen. Joe Manchin III (I-West Virginia) and Sen. Catherine Cortez Masto (D-Nevada) also opposed Mangi’s nomination. Manchin told Politico in March that he will not vote for any judicial nominee who does not have at least some bipartisan support. Cortez Masto called Mangi’s association with the Alliance of Families for Justice, a criminal justice group that advocates on behalf of incarcerated individuals and their families, “deeply concerning.”
Lauren Wodarski, a spokesperson for Cortez Masto, told The Post on Tuesday that the senator still opposes Mangi’s nomination.
Eight other Biden judicial nominees are waiting to advance out of committee, while three are awaiting hearings, which would be difficult to add to the schedule as lawmakers also work to avert a Dec. 20 government shutdown.
Tobias said he was “cautiously optimistic” that several of the nominees who have advanced out of committee will be confirmed. “Democrats will have a pretty smooth path unless Republicans do something really extraordinary,” he said.
If the Senate confirms all those nominees, Biden would have appointed 230 judges, the third-highest total for a single term behind President Jimmy Carter and Trump. But if the eight nominees waiting to be advanced out of committee are also confirmed, Biden will have eclipsed Trump for the second-highest first-term total of any president.
Carter appointed 267 federal judges, according to the Federal Judicial Center.
After Trump lost to Biden, then-Senate Majority Leader Mitch McConnell (R-Kentucky) told conservative radio host Hugh Hewitt that the Senate would work through the end of the year to “clean the plate” and confirm the outgoing president’s judicial nominees.
One of those lame-duck confirmations was U.S. District Judge Aileen M. Cannon, who oversaw Trump’s classified documents criminal case in southern Florida. She was confirmed Nov. 12, 2020, nine days after the 2020 election. This summer, she broke with legal precedent to dismiss the indictment against Trump, saying the special counsel overseeing the prosecution was unlawfully appointed.
Trump has publicly praised Cannon’s actions in his case, and his allies have floated her name and those of several other conservative jurists and lawyers as potential district, appeals and Supreme Court nominees.
White House spokesperson Andrew Bates said Democrats will work as fast as they can in the coming weeks to limit the number of vacancies Trump has to work with.
“Regardless of party, the American people expect their leaders to prioritize the rule of law,” Bates said in an email. “Delaying the confirmation of strongly qualified, experienced judges takes a real-life toll on constituents and leads to backlogs of criminal cases—meaning there is every urgent reason for Republicans and Democrats to continue working together in good faith to staff the federal bench.”
