The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Now that the Senate has consented to the appointment of Judge Ketanji Brown Jackson to the Supreme Court, the Biden White House is turning its attention to the 100-plus current and pending vacancies on lower federal courts.
On Wednesday, the White House announced its first lower court nominees in over two months: Two circuit court nominees and three district court nominees. With attention focused on filling a Supreme Court vacancy, lower court nominations were understandably put on hold. Yet if the White House plans to maximize its imprint on the federal judiciary, it will have to pick up the pace (as I discussed here).
A majority of current and pending circuit court vacancies lack judicial nominees, and some of these openings have been around for months. As this is an election year, and Senate Republicans are unlikely to cooperate in filling many seats, Senate Democrats will have to devote substantial time and effort on a shrinking calendar to moving nominees through the process.
One choice the White House may have to make is whether to seek more moderate, "consensus" candidates from states with Republican Senators that could be pushed through the process more quickly. Senate Democrats can get any nominee through for any vacancy, if they are willing to devote the time and effort to do it. Even when the Senate Judiciary Committee deadlocks on a nomination, Senate Democrats can bring the nominee to the floor, but this is a more time-consuming process than moving a nominee with a minimal degree of bipartisan support. Seeking an accommodationist path could help fill more seats more quickly, but it may come at the expense of the Biden Administration's efforts to name progressive stalwarts to the federal bench and discourage parts of the President's base. We'll see which approach the White House opts to follow in the coming weeks.