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Biden judicial picks win Senate backing at pace not seen since Nixon

5 minute read

U.S. President Joe Biden delivers remarks on the Delta variant and his administration's efforts to increase vaccinations, from the State Dining Room of the White House in Washington, U.S., September 9, 2021. REUTERS/Kevin Lamarque

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  • U.S. Senate has confirmed nine of President Joe Biden's judicial nominees
  • White House has avoided nominating judges from states with Republican senators, experts say

Reuters - President Joe Biden's nominees to the federal bench are winning U.S. Senate confirmation at a pace not seen in half a century, as Democrats race to put their stamp on the increasingly conservative judiciary before they potentially lose their control of the chamber.

Nine Biden judicial nominees have so far cleared the Senate, a rate not seen since the Nixon administration, according to new research from the Brookings Institution. And with Democrats' 50-50 control of the Senate an election away from being lost, they have every incentive to keep the pace up.

The Democrats' goal is to counter the influence of Republican former President Donald Trump's near-record 234 confirmed judicial nominees. Those included 54 appellate judges, who have further entrenched a conservative judicial philosophy in the circuit courts.

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"There's a real understanding we have numbers now, we don’t know how long we will have them and there is zero margin of error, so we have to move as fast as we can," said John Collins, a law professor at George Washington University who studies the judiciary.

The success that Biden and Senate Majority Leader Charles Schumer, a Democrat from New York, have had pushing judicial nominees through the chamber contrasts with Trump's first year, when by Sept. 10 just four of his nominees had been confirmed.

That's according to an analysis by Russell Wheeler, a visiting fellow at the Brookings Institution who examined the speed by which nominees advanced in the Senate during past administrations.

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Andrew Bates, a White House spokesman, said Biden is "grateful to the Senate for working with him so closely on this effort, and looks forward to announcing and confirming more experienced and groundbreaking candidates for the federal bench."

Biden's success comes despite having nominated six fewer judges than the 49 Trump had by put forward by the same point in his presidency.

Biden's confirmed nominees include Ketanji Brown Jackson, a potential U.S. Supreme Court pick now on the U.S. Circuit Court of Appeals for the District of Columbia Circuit.

Three other appellate judges were also confirmed: Candace Jackson-Akiwumi to the Chicago-based 7th Circuit, Tiffany Cunningham to the patent-focused Federal Circuit, and Eunice Lee to the New York-based 2nd Circuit.

All four are Black women. Biden has promised to use his nominees to add greater personal and professional diversity to the bench, with people of color, women, public defenders and civil rights litigators among his nominees.

More confirmations are coming: The Senate on Tuesday is expected to vote on whether to confirm Angel Kelley and David Estudillo to be federal district court judges in Massachusetts and the Western District of Washington, respectively, and whether to cut off debate on the nomination of Veronica Rossman to the Denver-based 10th Circuit.

The confirmation process accelerated during the Obama-era after Democrats in 2013 ended the ability of senators to filibuster most judicial nominees. Republicans ended the ability to filibuster Supreme Court picks in 2017.

Biden's nominees have also been moving swiftly because of the states he has made his judicial picks in: They have all hailed from states with no Republican senators, allowing Biden to avoid dealing with the Senate's historic "blue slip" tradition.

That policy allowed home state senators a say over nominees, regardless of party. The long-standing policy was weakened during the Trump era, when Republicans declined to allow Democratic senators to use it to block circuit nominees.

Senate Judiciary Committee Chair Dick Durbin, a Democrat from Illinois, has continued to not allow "blue slips" for circuit nominees.

The blue slip process remains in effect for district court nominees, creating the potential the White House would need to engage in time-consuming negotiations with Republican senators to advance nominees in their states.

Marin Levy, a professor at Duke University School of Law, said the Biden administration's progress in securing confirmations came despite inheriting a 30-year low of 46 vacancies, compared to 108 for Trump.

"So whether this trend continues will depend, in part, on how many seats open up (and where those seats are)," she said.

And Wheeler said at some point soon, Biden's ability to maintain the crisp pace will necessarily slow as he's forced to try to finally fill any vacancies in states with Republican senators.

"Obviously every senator has a way to muck with it to some degree," Wheeler said.

Emily Hampsten, a Durbin spokesperson, said Democrats worked in good faith with the Trump administration to allow 85 of his nominees to receive "blue slips."

"It's our expectation that Republicans likewise act in good faith and work with the Biden administration to fill district court vacancies in red and purple states," she said.

Editor's Note: The chart in this story has been corrected to reflect the number of judicial nominations President Joe Biden has made so far, 43. This story has also been updated with comment from the White House and details about more confirmation votes to come.

Read more:

U.S. Senate confirms Biden appointee seen as Supreme Court contender

Biden latest judicial picks stress public defender work

Former public defender, Zuckerman partner confirmed to 7th Circuit

Senate confirms Perkins Coie's Tiffany Cunningham to Federal Circuit

Eunice Lee, longtime NY public defender, confirmed to 2nd Circuit

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.

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