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Biden’s history-making judicial confirmations could hit a snag

The president is fulfilling a campaign vow to diversify the federal bench, with an emphasis on Black judges, but an arcane Senate rule may prove an obstacle.


Last week, Judge Doris Pryor was confirmed to lead the 7th U.S. Court of Appeals.

The move made history — Pryor was the ninth Black woman Biden has gotten confirmed to a federal circuit court since his term began last year. For the record, that’s more than all of his predecessors combined. And, it should be noted, this fulfills a 2020 campaign vow he made to diversify the federal bench with an emphasis on elevating Black judges.

So where does Biden stand in the overall confirmation count and in comparison with former President Donald Trump? 

As the Brookings Institute notes, Biden is outpacing his predecessor. Two years into his presidency, Trump had gotten 83 judges confirmed to district and circuit courts (including some who were severely unqualified). Biden has gotten 94 such judges confirmed, including Jeffrey Hopkins, who is Black and was confirmed late last week as a U.S. district judge for the Southern District of Ohio. That’s more than four of the past six presidents in their first two years, the exceptions being Bill Clinton (126) and George W. Bush (100).

But Brookings’ Russell Wheeler cautioned that some roadblocks may await the Biden administration. 

“The factors are the paucity of projected vacancies, who’s likely to create the vacancies, and the administration’s disinclination so far to fill district vacancies in red and purple states,” Wheeler wrote

That disinclination stems from Democrats’ compliance with a rule allowing senators (regardless of party affiliation) in states with district court vacancies to object to judicial appointments, which inevitably delays the confirmation process. 

Miles Mogulescu wrote for The American Prospect last week that under Biden, “the Senate has continued [Republican leader Mitch] McConnell’s practice of not requiring blue slips for circuit court judges, but so far has continued to require them for district court judges, even though such requirements could be ended unilaterally by the Judiciary Committee chair, Sen. Dick Durbin.” (Read more about McConnell’s shifting stance on blue slips here.)

Durbin has, Mogulescu notes, expressed an openness to scrapping the rule on blue slips, but so far he has rebuffed calls to do so. That’ll be something to watch as we round out the final two years of the first Biden term. If Democrats want Biden to continue his historic pace and his historic appointments to the federal bench, it may require them to stop playing nice with Republicans and take every measure necessary — including scrapping arcane rules — to make it so.