Senate Democrats will look to confirm more of President Joe Biden’s judicial nominations before the end of the year and the end of his term, but the lawmakers will have to navigate familiar political hurdles and a time crunch before the president’s term ends.
The Biden administration and Senate Democrats are running virtually parallel with the pace of lifetime judicial confirmations set during the Trump administration. Biden has notched 205 of those confirmations so far — two more than Trump at this point in his presidency, according to outside groups that track judicial nominations.
The president needs to secure 29 more lifetime judicial confirmations to match the 234 such confirmations of Trump appointees. There are 33 Biden judicial nominees who are in various stages of the confirmation process, according to the Administrative Office of the U.S. Courts.
But Democrats will be racing against the clock, with only a three-week session in September and five weeks scheduled across November and December for a lame-duck session.
John P. Collins, a law professor at George Washington University, said the remaining schedule is not a lot of time, considering every nominee eats up precious session time.
“There is certainly time to confirm a lot, if not all of these nominees, but it’s a slow-moving process, and it’s going to require a lot of different moving parts to all be in the right place to make it work smoothly,” Collins said. “It might look like months on a calendar, but we’re talking about a matter of weeks.”
Democratic leadership could also have to work around a caveat from Sen. Joe Manchin III, I-W.Va., who has said he will not support Biden judicial nominees unless they have support from at least one Republican.
Democrats in effect hold a slim 51-49 advantage in the chamber, but were put at a disadvantage this summer as Sen. Bob Menendez was tied up while on trial in New York. The New Jersey Democrat resigned in the aftermath of his guilty verdict, and his replacement, George Helmy, is tentatively scheduled to be sworn in on the date the Senate reconvenes, Sept. 9, according to the New Jersey governor’s office.
Russell Wheeler, a non-resident senior fellow at the Brookings Institution who focuses on courts, wrote in an online post that Biden could beat Trump’s overall confirmation figure, but Biden’s final number will depend on how often Senate leadership get majority votes in a divided chamber.
Democrats have to grapple with Republican opposition to many Biden nominees, Wheeler said in an interview.
“The majority has to worry about just having enough people present, because you can anticipate a high number of negative votes,” Wheeler said.
Senate Democrats have largely moved together with the Biden administration on judicial nominees. But some nominees have caught opposition from some Democratic senators.
Collins said several of the current judicial nominees are going to be “very close calls,” and mentioned Adeel Mangi’s bid for a seat on the U.S. Court of Appeals for the 3rd Circuit.
“Particularly before the election, it’s going to be really challenging to get some of them confirmed,” Collins said.
The nomination push for Mangi, who would be the first Muslim American federal appeals court judge, ran into trouble earlier this year as multiple Democratic senators said they would not support his nomination.
And there are no signs Republicans will lend a hand to help pass certain nominees who have been the subject of criticism from conservatives in committee.
Senate Minority Leader Mitch McConnell called out Mangi by name during a floor speech delivered before the summer recess, saying chamber Democrats when they return will “face a daunting list of radical judges that the Biden-Harris administration will want them to confirm.”
“So as our Democratic colleagues head out of town, I’d suggest that they consider whether the radical goals of the Biden-Harris judicial project are really worth it,” McConnell said.
Meanwhile, progressive judicial groups are closely watching the numbers, hoping the Biden administration can best Trump’s figure of 234 lifetime confirmations.
Jake Faleschini, justice program director at the progressive Alliance For Justice, noted that Biden has nominated enough nominees to reach the confirmation figure left by the Trump administration.
Whether Biden will be able to fulfill his legacy on the federal judiciary will come down to Majority Leader Charles E. Schumer, D-N.Y., and Senate Democrats prioritizing the push, Faleschini said.
“It really is an outstanding legacy, but it will come to naught if Leader Schumer and the Democratic majority do not come together to confirm those judges when they come back in September” and carry that forward through the end of the year, he said.
It remains to be seen how the 2024 general election will shape judicial nominations in a lame-duck session. For example, Senate Republicans would likely ramp up their opposition to Biden judicial nominees if Trump wins a second term or if the GOP regains control of the Senate.
Zachary Gima, vice president of strategic engagement at the American Constitution Society, said it’s still important for Democrats to pass Trump’s confirmation figure, even if Vice President Kamala Harris wins the White House and Democrats retain power in the Senate. He noted there will be new vacancies to fill in the following years.
“Keeping the foot on the gas through the end of this year would just be the start of momentum into the next four years,” Gima said.
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