At the end of 2021, there was good reason to be ecstatic about the pace of judicial nominations. President Biden and Senate Democrats had worked together to nominate and confirm 40 district and circuit court nominees, a record tied with Ronald Reagan’s first year in office. These were nominees who brought important demographic and professional diversity to the bench and who are already ruling on important matters like voting rights and new anti-abortion laws.
Seven months later, however, the pace of judicial confirmations has significantly waned — and time may well be running out. Not only are there dozens of nominees still waiting in the confirmation queue, but new vacancies on the courts are opening at a faster rate than judges are being nominated and confirmed. If Republican senators win back control of the Senate in November, this year may be the last opportunity to confirm any of President Biden’s nominees.
Currently, there are 15 circuit court nominees awaiting confirmation, and even their confirmations would only fill just over half of the 24 circuit court vacancies. Likewise, there are 33 district court nominations pending, which still won’t come close to filling the 90 vacancies on our district courts. Some of these nominations have been pending for as long as six months.
Even confirming the nominees who have already been voted out of the Senate Judiciary Committee might be a challenge this year. Standard Senate rules require the body to spend up to 30 hours debating each individual circuit court nominees before it can vote, plus two hours for each district court nominee. That means it would hypothetically take longer than five weeks of 24/7 Senate processing just to finish off the judicial nominees who have already been named, let alone adding more to the list or completing any other Senate business.
There are ways to accelerate the confirmation process. For example, shortcuts can be taken to ensure the floor time necessary for confirmations to ripen (as Senate Democrats have demonstrated before). Hearings can be expanded to include more nominees per panel. Recesses can be skipped to get more work done. Senate Democrats should commit to taking these and other unusual steps to meet the crucial goal of filling these vacancies while they still can.
Hopefully, Democrats don’t need to be reminded that Republican obstruction will remain unrelenting. Despite nominees’ impressive credentials, Republican senators have blocked many of them en masse, resulting in ties in committee that require extra procedural floor votes called discharge petitions. Moreover, because some nominees won’t garner a single Republican senator’s vote on the floor either, they likewise require all 50 members of the Senate Democratic caucus and the vice president to be present. In other words, a single senator’s health issue or delayed flight can thwart the process.
Such delays are only a preview of what we know to expect if Republicans take back power in the Senate. Republican senators have told us repeatedly that they’ll block Biden’s future nominees just as they blocked President Obama’s. In the wake of the Supreme Court’s Dobbs decision jettisoning a constitutional right to an abortion, Minority Leader Mitch McConnell (R-Ky.) has been bragging that blocking Merrick Garland’s nomination in 2016 was “the single-most consequential decision I’ve made in my public career.”
Not only has McConnell made clear his willingness to block future nominees, but so have other Senate Republicans. In a tantrum during Justice Ketanji Brown Jackson’s hearings, Sen. Lindsey Graham (R-S.C.) openly stated his willingness to block future nominees. Sen. Chuck Grassley (R-Iowa), who would likely take over the Senate Judiciary Committee, has refused to promise if Biden’s nominees would get a fair hearing. Sen. Ted Cruz (R-Texas) already spent most of last year blocking Biden’s ambassadors and has promised to block Biden’s judges if given the opportunity.
While the confirmation of Justice Jackson was a historic achievement, Democrats must make more progress on lower court judges. We need Senate Majority Leader Chuck Schumer (D-N.Y.) to expeditiously call these votes and ensure that the full Democratic Caucus is aligned to confirm these nominees. We can successfully secure our courts with champions of justice who will restore faith in the fairness of our judicial branch, but there’s no time to waste.
Rakim H.D. Brooks is the president of Alliance for Justice.