Biden sidesteps GOP on judicial vacancies, for now

President Biden is racing to get his court picks on the bench, but he’s sidestepping vacancies in states with Republican senators.

Among Biden’s Senate-confirmed picks, and the vacancies where he’s made nominations, none are from GOP-led states or those where the Senate seats are split between Democrats and Republicans.

That’s left Biden with 16 district court vacancies to fill from states with at least one GOP senator, and more on the horizon. For the powerful circuit courts, the lone vacancy where Biden hasn’t named a replacement is in Kansas — represented by GOP Sens. Jerry Moran and Roger Marshall — on the 10th Circuit.

In some cases, senators or congressional aides told The Hill that they were in talks with the White House, with one nomination described as “imminent,” but others said they haven’t received any outreach from the White House about vacancies in their states.

“We are in regular and close touch with Senators of both parties all across the country as the President nominates qualified, experienced candidates for the federal bench who are devoted to the rule of law and who reflect the diversity of our nation,” Andrew Bates, a White House spokesman, told The Hill in an email.

When asked about the trend, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), while acknowledging that there could be multiple factors, noted that senators generally start the process by creating a list of potential nominees.

“Step one usually relies on the senators to come up with names,” Durbin said.

Durbin said he had urged Democratic senators to quickly set up their selection process so they could get names to the White House. Asked about GOP senators, Durbin added: “Up to them.”

But the number of red or split-state vacancies Biden faces is only expected to grow. Spots are soon expected to open up in Arkansas, Iowa, Louisiana, South Dakota, Utah and Wyoming, as well as additional district vacancies in Texas and Indiana, according to tracking by the Administrative Office of the U.S. Courts.

Of the current vacancies, the White House hasn’t reached out on vacancies in Alabama, Florida and Indiana, according to GOP senators and aides.

The longest running vacancy among those states is in Alabama, where a district court seat opened up in February 2020. The Trump administration submitted a nominee to the Senate, but that was withdrawn earlier this year.

“I have no idea. Haven’t heard from the White House on it. It would have to be somebody well-qualified to get by us,” said Sen. Richard Shelby (R-Ala.).

Sen. Tommy Tuberville (R-Ala.) added that he also hadn’t heard from the White House and wasn’t sure when he would.

“We have no clue. The way things go around here you never know,” Tuberville said about when conversations could get underway.

Sens. Rick Scott (R-Fla.) and Mike Braun (R-Ind.) also said they haven’t had outreach from the White House. Florida has two vacancies, one created this year and the other from 2020, while Indiana has one vacancy created in January.

But in other cases, senators said they were in contact with the White House and at various stages in the pipeline for getting a nomination for a vacancy back in their home state.

There are nine court vacancies in states represented by one Democratic senator and one Republican senator. The White House is in talks with senators from each of those states.

Wisconsin, for example, uses a commission to come up with recommendations for senators to fill federal court vacancies. Sen. Ron Johnson (R-Wis.) told The Hill that the commission had submitted four names to the White House for a district court vacancy in his state.

“Names have been with the president for several months. I understand the president’s decision is imminent,” Sen. Tammy Baldwin (D-Wis.), asked about the vacancy, told The Hill.

Sens. Sherrod Brown (D-Ohio) and Bob Casey (D-Pa.) also said they were working to come up with names for district court vacancies in their states. Ohio has three district court vacancies, while Pennsylvania has four, including one dating back to 2018.

“We’re getting close. … There’s just a long process,” Casey said, adding that he and Sen. Pat Toomey (R-Pa.) had “at least” started talks with the White House.

The White House has also been in touch with some GOP senators in red states who have vacancies. Sen. James Lankford (R-Okla.) told The Hill that they had “started talking” with the White House.

“We’re working through that process,” Lankford said. “Taking names, talking recommendations, obviously working with the White House.”

Sen. Mike Crapo (R-Idaho) added that he had been in touch with the White House but that he and Sen. Jim Risch (R-Idaho) hadn’t yet recommended names.

“A number of people have expressed interest or have expressed interest in someone else,” Crapo said. “[But] we have not done that yet. Sen. Risch and I will do that, but we haven’t done it yet.”

The White House’s decision to focus on judicial vacancies from states within its own party isn’t unheard of. The Brookings Institution’s Russell Wheeler noted that the Trump administration “followed somewhat the same pattern,” with only one of his pre-recess district court picks in 2017 coming from a state with a Democratic senator.

There’s no Senate rule that requires Biden get buy-in from GOP senators on who he nominates. But a Senate precedent known as the “blue slip” gives home-state senators tremendous sway over who gets nominated for district court vacancies in their state and the power to block nominees they oppose.

Wheeler added that by focusing on Democratic state vacancies, Biden “has deferred dealing” with the blue slip, which can force “drawn-out negotiations, especially with opposite-party senators.”

“Biden has outpaced recent predecessors by moving expeditiously on the judicial nominations that are least likely to meet Senate resistance,” Wheeler wrote.

Updated at 9:08 a.m.