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Democrats need to pick up the pace on appointing judges

Filling judicial vacancies must be a top priority for Biden's next two years.
Image: A close up of a judge's hand holding a wooden gavel in a spotlight.
Harold M. Lambert / Getty Images file

With the call over the weekend that Sen. Catherine Cortez Masto of Nevada was re-elected, it is now clear that Democrats will control the Senate again in the new Congress. While the size of that majority remains uncertain — more on that to come — and control of the House is still up in the air, there is a lot about what the next two years of the Biden administration will look like that we still don’t know.

What we do know, though, is simple and incredibly important: Democrats will get more judges.

President Joe Biden will still be able to send judicial nominees to the Senate; the nominees will be considered by the Senate Judiciary Committee; and most, if not all, of those nominees will be able to be confirmed by the full Senate.

Democrats need to treat judges and judicial appointments as the bulwark against future efforts to undermine democracy.

This is huge news — if Biden; Senate Majority Leader Chuck Schumer, D-N.Y.; and Senate Judiciary Committee Chair Dick Durbin, D-Ill., take action to make sure that they meet this moment with the necessary action.

We are coming out of an election where, as we often heard, democracy was on the ballot. While there were significant successes for democracy, there remain signs in some areas of the antipathy to democracy that Donald Trump and his supporters have encouraged. This fight for democracy will continue, particularly if, as expected, Trump seeks the presidency again in 2024.

Democrats need to treat judges and judicial appointments as the bulwark against future efforts to undermine democracy that they can and should be. That means judicial appointments must be a primary goal of the next Senate.

And if Republicans do end up controlling the House, Schumer should immediately declare judicial appointments to be Senate Democrats’ No. 1 focus. There are 119 judgeships that are currently vacant or soon to be vacant. Of those 119 vacancies, Biden has announced a nominee for nearly half — 56 — of them. Sixteen of the positions are on the powerful appeals courts — which sit below the Supreme Court — and Biden has announced nominees for 12 of those seats.

Given the fact that the outcome of the next presidential election is obviously not certain and that Democrats face a very difficult Senate electoral map for maintaining their majority in 2024, everything possible must be done to bring the number of judicial vacancies as close to zero as possible by the end of 2024.

How does that happen?

First, Schumer needs to make clear that judicial nominations will proceed as quickly as possible in the next Congress. This is where Georgia comes in — and why Democrats need to do everything they can to ensure that Sen. Raphael Warnock wins his December runoff and returns to the Senate for a full term come January.

Democrats can’t afford to wait. Diminishing the power of partisan, conservative courts is necessary.

A Warnock victory would make moving nominations through the Senate substantially easier — and faster. In the current 50-50 Senate, Democrats have controlled the chamber because Vice President Kamala Harris — as president of the Senate — casts the tie-breaking vote. But the mechanics were a bit more complicated. With the 50-50 split, committee membership — and party-line votes — were evenly divided. This meant that nominations that lacked any support from Republicans could proceed to a floor vote but took an extra step — and extra time — to be “discharged” from the committee and considered by the full Senate. A 51-49 Senate would end the delay those nominations faced.

Second, Biden and the White House need to ramp up their nominations. As they regularly (and rightfully) promote, the president and his team have done a great job of getting judges confirmed and putting forward a demographically and professionally diverse group of nominees at that. But in order for Schumer to keep the confirmations happening, he and Durbin need more nominees, coming more quickly.

Now, historically, district court nominees are generally recommended by home-state senators — whether directly or through a judicial nominations commission. But the Biden administration has already reminded those senators, by way of its increased focus on demographic and professional diversity, that Biden ultimately is in charge of the nominations. As we move into 2023, the White House might need to go further: Set deadlines, and if senators don’t provide reasonable recommendations, go ahead with an appropriate, qualified nominee who meets the White House’s aims. This will press Democratic senators to pick up their pace, and, if the White House reaches the point that it actually put forward its own nominees, it could break the logjam over vacancies in more conservative states.

Which leads to the final necessary step: Blue slips need to go. Blue slips are one of those Senate traditions that sound absurd until you realize that most Senate history is absurd. The “blue slip” process allows a home-state senator to stop a judicial nominee’s hearing if either of the senators from the state don’t return their blue slip. Sen. Chuck Grassley, R-Iowa, then the chair of the Judiciary Committee, ended the blue-slip requirement for appellate nominations during the Trump administration with the blessing of then-Majority Leader Mitch McConnell, R-Ky.

In order to make any substantial dent in the lopsided federal courts in conservative areas, Durbin — with loud support from Schumer and Biden — needs to make clear that blue slips will no longer be required for district court nominees, as well as appellate nominees. This wouldn’t just accelerate confirmations — it would also change the makeup of federal courts in conservative states.

Lest there be a concern that such a move could backfire on Democrats, there’s no reason to think that GOP leaders wouldn’t take this step as soon as they deemed it politically advantageous in the future. More importantly, Democrats can’t afford to wait. Diminishing the power of partisan, conservative courts is necessary. Adding liberal voices on district courts across the nation, not just in Democratic-leaning states, will help democracy.

Democracy did well on the ballot this past week. But the 2024 election looms, and antidemocratic sentiment remains all too strong. Biden, Schumer and Durbin can help cement their legacies by ensuring that the next two years set records for transforming our judiciary and leaving no seat unfilled.