Time for Senate Democrats to step on the gas to confirm judges

The federal government is funded, for now, and the House is in turmoil, leaving the Senate with a unique window to focus on doing what only it can: confirm judges. After prioritizing judges for nearly two years, the Senate has notably taken its foot off the pedal of confirmations for much of this year. The next few months will tell whether the Democratic Senate majority understands the risk that is leaving judicial vacancies open heading into a presidential election.

Since President Joe Biden was sworn in, we’ve heard Senate Majority Leader Chuck Schumer and Sen. Dick Durbin, the majority whip, repeatedly express their commitment to the courts. In the first year of the Biden administration, Schumer said the Senate would “restore balance — much needed balance — to the federal judiciary.”

The Senate made good headway on this front, helping Biden appoint more judges in his first two years than any of his recent predecessors. The Senate and White House have also made historic strides in diversifying the federal bench. However, to deliver on Schumer’s promise of bringing balance to a federal judiciary of 870 active judgeships, the Senate needs to at least match Trump’s total of 234 confirmed judges in four years.

At this point, the Senate has mostly itself to blame for Biden falling behind Trump in the pace of confirmations, first in August and only further behind since. Senators could have stayed in D.C. in August and confirmed at least the 17 judges that were pending on the floor; instead, they decided to take five weeks off. The Senate could have confirmed more than 10 judges in June and July combined. It chose not to do either of those things, bringing us to where we are today, with the Senate having confirmed 143 of President Biden’s judicial nominees as of the end of September, nine short of the 152 that the Senate had confirmed by that same point in the third year of the Trump administration.

Looking ahead, Trump had 187 judges confirmed by the end of his third year. To even tie Trump, the Senate needs to confirm 42 more judges in under three months. Said another way, the Senate needs to confirm five to six judges a week during each of the remaining eight scheduled work weeks this year. The Senate has confirmed as many as 12 judges in a week, so this is possible, but it will require an entirely different approach to judicial confirmations than we have seen as of late.

The challenge for the Senate will not get any easier with time. It’s hard to believe right now, but we have to assume the House will eventually find itself a Speaker. As soon as it does, everyone on the Hill will be focused on funding the government after November 17, making judges at most a second-tier priority. Should the government shut down, there is even less likelihood of judges being confirmed — even though the Senate can technically confirm during a shutdown.

Then we reach 2024, when senators will want to spend less time in D.C. and more time on the campaign trail. It will become harder for the Senate Judiciary Committee to have enough members in town to process nominations, and the Senate Democratic majority will depend all the more on attendance.

At its current pace, Senate Democrats are risking a repeat of history — to our collective detriment. At the end of the Obama administration, there were dozens of federal court vacancies left empty. Then President Trump and Senate Majority Leader McConnell immediately set to work filling them with young conservative ideologues. This included Judge Matthew Kacsmaryk, who issued a decision seeking to suspend the FDA’s long-standing approval of one of the two drugs most commonly used in medication abortions, and six judges on the Fifth Circuit Court of Appeals, which is responsible for a disproportionate number of cases on the Supreme Court’s docket this term.

Nobody should be surprised that the Fifth Circuit produces so many Supreme Court cases given the outsized influence that Trump had on its makeup. This was a bench built to do exactly what it’s doing: distort the law, ignore precedent and tee up opportunities for the Supreme Court to rewrite American jurisprudence. We cannot afford for history to repeat itself with another circuit.

That brings us back to now. The government is funded for the next six weeks. The House is preoccupied with trying to prove itself a functioning chamber. Now is the perfect time for the Senate to prioritize what it can singlehandedly do: confirm judges. For nearly two years, Schumer and Durbin demonstrated what it means to prioritize the courts. They need to revive that pace and be laser-focused on confirming the 35 judges pending in the Senate before November 17. They can do this — if they start now.

Russ Feingold is president of the American Constitution Society and previously served 18 years as a U.S. senator from Wisconsin.