Judicial Nominations

Biden Administration Moves Swiftly on Judicial Nominations (Updated)

It appears that folks in the Biden White House have learned from the mistakes made by prior Democratic Administrations.

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Without a Supreme Court vacancy, judicial nominations are not attracting too much attention, but the Biden Administration has been quite busy working to nominate and appoint progressive judges to the federal bench. Indeed, as Axios reports this morning:

President Biden and the Democratic-controlled Senate have installed more federal judges during the first six months of his presidency than any administration since Richard Nixon's.

Specifically, in his first six months in office Biden made eight appointments to the federal bench (appointments occur after the Senate votes to confirm a nominee). By comparison, Axios notes, Presidents Trump and Bush (41) appointed four in their first six months, and Presidents Obama, bush (43), and Ronald Reagan had not appointed any. Note that Bush (41) was aided by succeeding a President of the same party whose nominees he could re-submit, which makes the Trump and Biden numbers even more notable.

Axios credits White House Chief of Staff Ron Klain for the administration's progress on judges. This makes sense, as Klain is well aware how both the Clinton and Obama Administrations squandered their opportunities to make a greater mark on the federal judiciary by slow-walking the nomination process. (In 2009, I discussed the slow pace of Obama's judicial nominations here and here. Note that at the time the Senate was split 59-41.)

One constraint on the Biden Administration's ability to alter the composition of the federal courts is the (relative) lack of vacancies, particularly as compared to the former President, but this should not be overstated. As of this morning there are over 80 federal judicial vacancies, yet only 22 pending nominees (and two additional nominees for pending vacancies). [The Administrative Office of the U.S. Courts keeps track of vacancy data here.]

It is true that President Trump was able to move quickly on judicial nominations because he inherited a large number of vacancies. Senate Republican Leader Mitch McConnell deserves much of the credit (or blame) for this, but here again it is important not to overstate the case. The Axios story, for instance, notes there were 17 circuit court vacancies "waiting for [Trump] on the day he was sworn in, thanks to confirmation slow-walking during the Obama administration by then-Senate Majority Leader Mitch McConnell (R-Ky.)"  This is not quite right.

There were indeed 17 circuit court vacancies when Donald Trump was inaugurated, but Mitch McConnell had little to do with most of them. As of December 21, 2016, there were only 13 circuit court vacancies, only seven of which had pending nominees. The Obama Administration failed to nominate anyone for six of the vacancies (after making zero circuit court nominations in all of 2015), and four others arose after Obama's opportunity to make any nomination had passed. In other words, ten of the seventeen of the vacancies cannot be credited or blamed on McConnell, as it is impossible to "slow-walk" a nomination that was never made.

Another factor that will affect the Biden Administration's ability to shape the federal judiciary is whether judges opt to create vacancies. It is no secret that judges sometimes opt to retire or take senior status with an eye toward who will name their replacement. This explains the slight increase in vacancies between November 2016 and January 2017, as well as the increasing number of vacancies in the first half of 2021. There were 49 judicial vacancies on January 1, and over 80 today.

Interestingly enough, there are a fair number of federal judges on both district and circuit courts who were appointed by Democratic Presidents and are eligible to take senior status, but have neglected to do so. Here in the Sixth Circuit, for example, there are three Clinton appointees who are eligible to take senior status, but who have given no indication of their intention to do so. There's also no word on the intentions of the court's three other liberal judges, who will also become eligible for senior status during President Biden's first term. In other words, Justice Breyer is not the only jurist holding a seat that progressives want President Biden to fill.

Yet another variable may be the number of seats on the federal bench. As I have noted before, there are strong arguments in favor of creating additional seats on some courts to address case backlogs, and the Judicial Conference has requested that Congress authorize several dozen new seats, primarily on district courts.

However many vacancies President Biden ultimately has the opportunity to fill, it is notable that this is the first Democratic Administration in the past thirty years to make judicial nominations a priority. Accordingly, this may be the first Democratic Administration in that time positioned to take full advantage of whatever opportunities emerge.

UPDATE: At Excess of Democracy, Derek Muller suggests that the Biden Administration's decision to forego pre-nomination evaluation by the American Bar Association has helped accelerate the pace of judicial nominations. Some progressive groups also raised concerns that the ABA's standards made it more difficult to put forward nominees with diverse backgrounds, a claim that has some empirical support.

One benefit of pre-nomination ABA review in the Obama Administration was that it gave the White House leverage to push back against Senators who sought to forward less-qualified nominees. [Judicial advisory commissions, such as the one on which I have served here in Ohio, often perform a similar function, particularly when they are bipartisan, as ours has been.] As we also saw in the Trump Administration, those nominees pushed by Senators (especially for district courts) are sometimes selected due to their political connections rather than their judicial qualifications. As it happens, the ABA has given Biden's nominees high marks thus far. It will be interesting to see whether that continues.

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  1. These are all enemies to our nation, and agents of the Chinese Commie Party, as represented in the US by the Democrat Party. Everything to the utmost should be done to block them.

    1. How’s life on the losing side?

      Sucks doesn’t it.

      1. I’m not so sure he is.

        1. Then you don’t anything about the United States.

          We’ve been on a liberal, progressive trend for 230+ years.

          Sure, the trend is not linear and there’s been some bumps and set-backs along the way (which as I’ve stated repeatedly is a GOOD THING), but it’s also unmistakable and relentless.

          1. Ape and Artie. You are being misled by the media, propaganda outlets for the tech billionaires. They put out the wishful thinking of these collaborators with the Chinese Commie Party. They are not Commies themselves. They wants access to the huge Commie market, and will do anything to kowtow to the Commies.

            1. The American people, who are not part of fake polling, are sick of you people.

              1. Because all PC is case, the lawyer profession will be destroyed before anything can improve.

                1. Bizarre, Bizarre, Behar!

    2. Bircher Behar’s Bellowing.

  2. Of course the Senate could flip at the midterms.

    1. That is more likely than Trump’s reinstatement, but not probable.

      1. “It’s tough to make predictions, especially about the future.” – Yogi Berra

  3. “there are a fair number of federal judges on both district and circuit courts who were appointed by Democratic Presidents and are eligible to take senior status, but have neglected to do so.”

    You are presuming that Biden is a Democratic President, and not the Moonbat Leftist he actually is.

    Judges tend not to be stupid people, and while Clinton leaned left, his administration was still somewhat mainstream. Hence while his nominees also likely tended to lean left, they were still somewhat mainstream.

    I’m terrified of who Biden/Harris/Obama will be appointing to the bench, and I suspect some of the Clinton appointees are as well.

    1. I’m old enough to remember people like Crazy Eddie talking about 60’s Radical Socialist Bill Clinton. Some things never change. To the wacky extremist the apocalypse is *always* around ever corner, no matter how many of them are turned.

      1. Nostalgia time…. I’m old enough to remember one of my ditto zombie right-wing friends explaining (with absolute assurance) that Clinton’s deficit package wasn’t about debt at all. You see, he explained, raising taxes actually increases the deficit per the Holy Writ of supply-side economics. Instead, the deficit bill was about “controlling people”.

        These days you’ll hear that same shtick while trying to convince imbeciles to vaccinate against disease. Right-types may have a limited number of ditties, but damn if they don’t always find new ways to recycle those stale old tunes.

        1. You know what “imbeciles” do?

          Try to convince a group of people to do something by insulting them & telling them how dumb they are.

          It’s really a poor tactic. Counterproductive even.

          1. Yeah. Right. Those folks will stop listening to Tucker Carlson, ignore their handlers & suddenly grow some common sense if only I stop being a meanie to them. I’m sure you’re correct……

            1. They certainly won’t if you just keep insulting them. Insulting people never convinces them of anything.

              It’s like you don’t actually want them to be vaccinated.

              1. Tell me, Armchair : If I’m extra, extra nice to these snowflakes, will they stop pretending to believe Trump won the election? Yours is an ideology dedicated to delusion & lies. If my being saccharine helps bend that curve, I’m willing to help!

  4. There is no point in making nominations when so many existing nominations are bottled up in a hostile Congress that won’t even hold hearings on them. Biden may yet learn the lesson that Obama learned,

      1. Look up the word “filibuster”.

        1. I’ve seen the numbers: Both Clinton and Obama’s nominees were waiting on a vote for typical amounts of time. They really were just slow off the starting block, especially Obama.

          Fillibusters could potentially reduce confirmation numbers, but they can’t reduce nomination numbers.

          1. Two things are making it go faster—McConnell made the Senate where appointments originates which cuts out the middle man of appointments starting in the White House.

            Next technological advances play a big part moving these things along because McConnell’s and Schumer’s staffers could have WhatsApp chats going on long before January 20th and they could be reaching out to these people via digital text communication and getting their ducks in row long before Biden even won the presidency. So right when Biden and Trump won they can start sending out the official emails but they knew who they were going nominate a year ago if not longer. So before digital text communication with the iPhone they would have had to have an in person working group meeting maybe once a month before a person in their party became president because as staffers they have other duties that are more important especially when they are years away from a president of their party taking office. So we know from Trump’s State Department that at some point federal employees stopped worrying about emails and the FOIA and started using WhatsApp…and that’s probably sometime around 2014.

        2. Look up the composition of the Senate in from 2009 until Feb 2010.

  5. When it’s some policy decision that hurts Americans, they never learn anything.

    When their power is affected they learn. They actually care about their power.

  6. Jonathan,
    The only part of this I have issue with is the comment that you cannot slow walk a nomination which didn’t occur. If nominations are being made because the behind-the-scenes negotiations aren’t working or because you know the nominations would be futile, the political process is still effecting the speed of the action.

    I don’t think Obama was dilatory in not nominating people to vacancies in 2015. The senate had just flipped and the Democrats had just jammed through as many as they could in 2014 after the nuclear option, with Reid bragging about the lame duck confirmations.

    For an example under Trump, look at the Western District of Washington which had four vacant seats (out of 7 total) which were vacant the entirety of the Trump presidency. It was futile to make nominations where the blue slip (still honored for district court nominees) wasn’t going to be returned without a deal. There was apparently a deal in place at one point but Trump got pissy and decided not to follow through.

    1. “I don’t think Obama was dilatory in not nominating people to vacancies in 2015.”

      I don’t think he was accused of being dilatory in 2015. He was accused, and rightfully, of being dilatory in 2009-10. The stats show that his nominations were acted on by the Senate in the normal amount of time, he just got a slow start at making them.

      I can’t celebrate that Biden isn’t making their mistake, but it IS a mistake they made that he isn’t, and it’s worth noticing.

    2. I take issue with Prof. Adler’s characterization here as well. He wrote,

      Senate Republican Leader Mitch McConnell deserves much of the credit (or blame) for this, but here again it is important not to overstate the case.

      Sen. McConnell is the one that made the case that he deserves credit for there being a lot of vacancies for Trump to fill. There’s a video of him on Hannity doing so, giving a cartoonish laugh afterwards, if you’ve never seen it.

      Hannity: “I was shocked that former President Obama left so many [judicial] vacancies and didn’t try to fill those positions.”

      Mitch McConnell: “I’ll tell you why. I was in charge of what we did the last two years of the Obama administration.”

  7. We’re in a race to the bottom. The object obstruction is gonna tear down all our institutions at some point. Now the game is to assert power wherever and however you can.

    1. “We’re in a race to the bottom.”

      That’s the disaffectedness, ignorance, and desperation talking.

      America continues to improve.

      Less unearned privilege, unwarranted secrecy, superstition, ignorance, bigotry, insularity, dogma, and backwardness. Fewer people treated like dirt.

      More reason, education, tolerance, progress, inclusiveness, freedom, transparency, merit-based opportunity.

      Fewer people living in ignorant, bigoted, can’t-keep-up backwaters. More people residing in modern, successful, educated communities.

      Continuing medical, scientific, technological, and scholarly advancement.

      Historic improvements in availability of good beer. Vaccines taming the pandemic among all but the belligerently ignorant and lethally reckless. Another Stones tour of the United States just announced.

      Only the most embittered wingnut could be unhappy with respect to modern America and its continuing, predictable trajectory.

  8. I foresee many, many cloture votes. There damned well better be.

    1. Why? Which judicial nominations are susceptible to filibuster?

      Democrats currently need no Republican votes to confirm federal judges, so far as I am aware.

  9. All that pandering to libs by the ABA, and they get shafted anyways. Nice.

    1. Even better is the precedent for the next Republican POTUS to do the exact same thing…

  10. The Obama Administration failed to nominate anyone for six of the vacancies (after making zero circuit court nominations in all of 2015), and four others arose after Obama’s opportunity to make any nomination had passed. In other words, ten of the seventeen of the vacancies cannot be credited or blamed on McConnell, as it is impossible to “slow-walk” a nomination that was never made.

    I don’t find this analysis very convincing. Perhaps with Cocaine Mitch having bottled up seven of his nominees, President Obama felt there was little point in nominating any more for Mitch to ignore.

    Face the facts. The new rules are that :

    1. a President gets his judges confirmed if his party controls the Senate (hence the current haste)

    2. the rule then forks according to party :

    (a) if President + Senate = D, then rule 1 is pure and without exception

    (b) if President + Senate = R, then the Misses Collins and Murkowski will vote against a few nominees, and in a close Senate that may lead to the nomination failing

    3. If Pres and Senate are in opposite hands :

    (a) if P = D and S = R, the Senate will confirm a number of District Judges, slowly, a couple of Appeals Court Judges veeeeeeery slooooowly, and a SCOTUS Justice not at all, subject to the reverse Collins / Murkowski rule

    (b) if P = R and S = D, the Senate will Garland all judicial nominations. And very possibly all executive branch nominations.

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