The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Obama Administration was notoriously slow to make judicial nominations. Even where there was no need to consult with home-state Senators (as with D.C. vacancies), the White House put forward nominees at a tepid pace, resulting in fewer and slower confirmations than one might have expected. The nomination pipeline was rarely full, so it was easier for Senate Republicans to slow things down, particularly once Mitch McConnell became Senate Majority Leader.
It is unclear whether President Biden's nominees will face a democratic or a Republican Senate, but there are early signs the Biden Administration wants to hit the ground running when it comes to judicial nominations, so as to begin to undo the Trump Administration imprint on the federal judiciary.
The Huffington Post reports that incoming White House counsel Dana Remus has sent a letter to Democratic Senators requesting that they submit names of potential nominees for existing district court vacancies "as soon as possible" and no later than January 19. In other words, the Biden Administration wants to be able to start reviewing potential nominees on day one.
As of today (12/30) there are a total of 49 current judicial vacancies and five announced future vacancies. In all likelihood, these numbers will increase in January as additional judges announce plans to retire or take senior status. It is also likely that some judges will announce retirements upon the confirmation of their successors, so as to prevent extended vacancies on their courts. It is also possible there may be additional judgeships, particularly if Democrats manage to take control of the Senate. The Judicial Conference has requested additional seats on some courts.
The Remus letter makes clear this is not simply about current vacancies. It further asks Democratic Senators to quickly identify additional nominees "within 45 days of any new vacancy being announced, so that we can expeditiously consider your recommendations." This is an aggressive time-table, particularly for Senators from states where it is common to rely upon advisory commissions to identify and vet potential nominees. Having served on Ohio's commission, I can attest it would be quite difficult to meet such a deadline while performing the traditional degree of vetting and review.
In addition to seeking early input from Democratic Senators, the letter indicates that the Biden Administration would like to draw nominees from a broader pool of potential jurists. According to the letter, the Biden team is "particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life." Progressive activist groups have been urging such a broader focus. The lack of federal judges with meaningful criminal defense experience, in particular, is a widely recognized problem. As this Cato study noted, there are lots of former prosecutors on the federal bench, but relatively few former public defenders.
Without question, control of the Senate will make or break the Biden Administration's ability to make an early mark on the federal judiciary. A Democratic Senate will begin considering and confirming Biden nominees much more quickly than a Republican one. That said, it still makes sense for the Biden White House to begin moving now.
The more nominees there are in the pipeline, the more pressure there is to let some of them through. For this reason, the Biden White House will want to put forward names as quickly as it feels comfortable doing so. It will also want to put forward names that have local GOP support, where possible.
Beginning the identification and vetting of potential nominees early will also put the Biden White House in a stronger position to negotiate over packages of nominees. Though rarely reported, the Trump White House was quite effective at putting together bipartisan packages of nominees in states with Democratic Senators who were willing to negotiate. This is how some key vacancies in states like Illinois and Hawaii were filled without Democratic opposition. While the political dynamic will be somewhat different, a Biden White House would be well advised to make such deals where possible.
A few other tidbits worth noting. First, the letter focuses on district court nominees, suggesting the Biden Administration intends to take the lead on appellate nominees. This is what the Trump Administration did, and (in my view) it makes sense. Local interests are much stronger when it comes to district court nominations.
Second, even before this letter was sent, progressive activist groups had begun working to help fill the roster of potential nominees. The American Constitution Society, for one, has sent out a fund-raising appeal noting that it is "uniquely positioned to build the bench of the next generation of progressive leaders in the law" and boasting that it had "developed a highly qualified pool of legal professionals and delivered the names to President-elect Biden's transition team just hours after he became the President-elect." Other groups have reportedly made similar efforts, though these lists of potential nominees have not been made public.