Voting to advance Supreme Court nominee Judge Ketanji Brown Jackson will be the main event when the Senate Judiciary Committee meets Monday.
But the committee will also be sending to the Senate floor several other federal judge nominees, as Democrats push to keep the judiciary confirmation machinery cranking while Jackson dominated the spotlight.
Since Justice Stephen Breyer announced his retirement in late January, the Senate has confirmed 16 lower court judges – all while Democrats were managing the high-stakes, resource-intensive Supreme Court nomination process. Two district court judges the Senate confirmed on Thursday brought the total of appointees of President Joe Biden on the federal bench up to 58.
“Senate Democrats are proud of this record and we’re going to keep it going,” Majority Leader Chuck Schumer, a New York Democrat, told reporters last week. “This is one of the most important things we can do.”
Democrats have outpaced the numbers of judges former President Donald Trump had confirmed at an equivalent point in his presidency, though they don’t currently stand to match his imprint on the Supreme Court, with Jackson’s confirmation not shifting that court’s fundamental conservative lean.
As Democrats face the risk of losing the Senate gavel in November’s midterms, Biden might not also have the benefit that Trump had of four years of a Senate controlled by the same party – adding pressure to the push to put Biden’s appointees on the bench.
There are 108 current or expected lower court vacancies now pending, 84 of them openings for which a nominee has not yet been named.
The general time crunch is being further complicated by the procedural tactics Republicans can employ to slow a nominee’s path to confirmation, in addition to a Senate norm that Democrats for now are currently honoring that gives senators veto power over district court nominees from their state. Any delay on the White House side in sending up nominees to the Senate could further put Biden off-track.
“They’ve got to move now. [As] Judge Ketanji Brown Jackson becomes Justice Ketanji Brown Jackson, the Senate Democrats, the White House have got to work hand in glove,” said Rakim Brooks, the president of the progressive judicial advocacy group Alliance for Justice. “They have been moving as quickly as any president has, but this is a historic opportunity to reshape the courts and it can’t be missed.”
Democrats started the Biden administration focused on replicating Trump’s success in confirming judges, leaving almost no openings on the appellate bench.
“They filled all the vacancies and we need to fill all the vacancies,” Sen. Mazie Hirono, a Hawaii Democrat, told CNN.
Republicans are using procedural hurdles to slow things down
Filling the vacancies is easier said than done, as several things must come together for nominees to move forward quickly. And Democrats are facing several types of maneuvers Republicans can use to slow down the process.
All 58 judicial nominees confirmed so far have required cloture votes – a step in the floor voting process that theSenate minority can demand and one that can add to the floor time spent on a nominee before his or her final confirmation vote.
“In the past, half of these would go through by voice vote. And the Republicans – they just want to hold things up,” Vermont Sen. Patrick Leahy said.
(Democrats also embraced the use of cloture votes on executive branch and judicial nominees under Trump; while he was President, there were some 200 cloture votes on judicial nominees.)
But even before nominees reach the floor, other things can stand in the way of their confirmation. If the Judiciary Committee – which is evenly split among Democrats and Republicans – deadlocks on approving a nominee, that adds an additional procedural maneuver on the floor, known as a discharge petition, to advance the nomination to the full Senate.
There are currentlyfive Biden judicial nominees that failed to get GOP support in the committee and will need discharge petitions to be confirmed. It is unclear whether Democrats have the votes to do so at this point.
And for district court nominees to even advance through committee, their home state senators must return what’s known as “blue slips” in order for their nominations to go forward. For seats in states where both senators are Democrats, this step does not usually pose a problem. Not surprisingly, most of the confirmation effort so far has been focused on those vacancies or other vacancies where blue slips aren’t required. But already one Biden nominee has been derailed by a blue slip, after Wisconsin Republican Sen. Ron Johnson refused to return a blue slip for William Pocan, a state court judge whom Johnson had recommended to Biden for the seat.
“There are still a lot of blue state vacancies,” a Democratic committee aide, who requested not to be named to speak candidly, told CNN. “You could probably fill hearings with blue states or jurisdictions that don’t require blue slips at all, but of course, our hope is that we have a mix of blue state, purple state, red state, etc. nominees.”
Three Biden appointees to Ohio’s federal bench were confirmed in February after being recommended to the White House by Ohio’s Republican Sen. Rob Portman and Democratic Sen. Sherrod Brown. Of the current and expected vacancies for which nominees have not been named, more than two dozen of the openings are for seats where at least one of the senators is a Republican.
But the reversal by Johnson on a nominee that he once supported is another data point cited by groups on the left who are calling on Democrats to reconsider the blue slip process, which had already been nixed for appellate nominees when Republicans controlled the Senate.
“That doesn’t pass the straight face test,” Demand Justice chief counsel Chris Kang said of Johnson blocking a nominee he had initially recommended.
Balancing a Supreme Court nomination fight with a continued lower court push
Democrats say they’re satisfied with how in recent months they juggled these various factors all while keeping Jackson’s Supreme Court confirmation on the quick timeline they had set out for filing Breyer’s seat.
The Judiciary Committee did not deviate too much from its typical schedule of holding nominations hearings every other week that the Senate is in session. Since Breyer announced his retirement, nearly a dozen judicial nominees have testified before the committee. Preparing those nominees for those hearings was work that the White House had to do while it was ushering Jackson through the Supreme Court vetting and nomination process.
The committee, also in that period, held votes to move 10 Biden lower court nominees to the floor. Many of them have already been confirmed or are expected be confirmed in the coming days.
When the committee votes on Jackson, it will also vote on the appellate nomination of Judge Stephanie Davis, who if confirmed would be the first Black woman from Michigan to sit on the 6th US Circuit Court of appeals. Arianna Freeman, a nominee for the Third Circuit who has faced fierce criticism from Republicans for her work as a federal public defender, is also up for a committee vote on Monday, as are three federal district court nominees.
Meanwhile, six of the nominees previously advanced out of the committee are already on the Senate executive calendar, putting them in the queue for a floor vote.
Even with this brisk pace, it’s unclear that Biden will this year fill all the vacancies currently open on the federal judiciary.
The Judiciary Committee aide told CNN that the committee aims to hold nomination hearings every other week that the Senate is in session through the spring and summer – before the August recess – and in the fall, before the break the Senate takes around the midterms. The White House, for its part, hopes to roll out new nominees at a pace that guarantees every seat at those nomination hearings – where usually five or six nominees are testifying – is filled.
“My view is as many as possible, as soon as possible, because we need to fill those positions for the sake of the American people,” said Sen. Richard Blumenthal, a Connecticut Democrat. “Put aside the midterms, these vacancies need to be filled because there are backlogs in most of our courts.”