White House Returns Focus to Filling Lower Court Vacancies

With many vacancies to fill, the BIden Administration works to identify additional judicial nominees.

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.

Comments

[Brett Bellmore]

The higher up in the judicial food chain you get, the more disjoint Republican and Democratic ideas of what makes a judge acceptable are; At the lowest level the judges are mostly handling non-controversial stuff, and are heavily constrained by precedent, so consensus candidates CAN exist. At the Supreme court level, they're unicorns.

So it's possible for Biden to make picks that will sail through.

The problem is that these starter judges are where you later find the more ideological judges you want to place in higher positions, so if Biden nominates all consensus candidates, the next time the Democrats are in a position to put whoever they want in the higher positions, they'll find their bench is lacking real fire breathers.

I suppose it all comes down to how soon they expect to be back in a position to confirm real ideologues, vs how much urgency they see in filling vacancies so the court system can work as a court system, not just a way to do policy beyond the reach of the voters.

[Lee Moore]

Up to a point, Lord Copper. You need to keep the District Courts well stocked with folk who can churn out national injunctions if and when there's a GOP President, strike down GOP district maps, and make 200 page "findings" to run blocking patterns on higher court review.

District Court judges are hardly chopped liver.

[MollyGodiva]

Republicans under Trump pushed though over Democratic objections the most rabid partisans they could find. The Ds need to do the same. Put as many liberals that they can.

[y81]

The Republicans had a majority in the Senate. The Democrats don't, which makes it harder for them. It will be even harder for the Democrats if they Republicans gain a Senate majority in the next election, as many expect.

[Rossami]

If those were "the most rabid partisans they could find" then either Trump was highly ineffective at finding actual partisans or the supply of R-partisans is astonishingly small.

I dislike a lot of what Trump did as president but his record of judicial appointments was the best we've seen in many administrations.

[Rev. Arthur L. Kirkland]

" his record of judicial appointments was the best we've seen in many administrations "

Sure, if your partisanship inclines you to like strident ideologues with thin resumes, substandard qualifications, and Federalist Society tramp stamps.

[Sarcastr0]

There's no need to go tit for tat here - quantity is the key to success here.

Dems don't need rabid partisans for our Constitutional paradigm to work - you wouldn't know it from reading folks here, but most of what we want is within the legal mainstream. Grab a random academic, and they're not at war with Warren Court precedent.

The Federalist Society is a rearguard action against judicial conventional wisdom. (And there's nothing wrong with questioning the dominant paradigm, even if I think they're wrong and started in bad faith.)

[Brett Bellmore]

"Dems don't need rabid partisans for our Constitutional paradigm to work"

You're like a fish that doesn't see the water it lives in.

"Grab a random academic, and they're not at war with Warren Court precedent."

Fancy that: Rabid partisans aren't at war with their prior victories. The Federalist society is a rearguard action against the left's rabid partisanship, triumphant.

[Sarcastr0]

When your definition requires you to call an entire party, the vast majority of academia, and most judges, all rabid partisans, you've robbed the word of it's meaning.

[Brett Bellmore]

I've presented to you the studies showing that university faculties range from 3 or 4 to 1 Democratic, upwards to 50 to 1.

The left has conquered academia. They're in the mopping up phase now. Naturally, if you pick a random academic, you're going to find they're not at war with their own party's victories. And a random academic is almost always going to be a Democrat, if not further left.

Rabid partisanship doesn't stop being rabid just because it conducts a purge.

[Sarcastr0]

Democratic != rabid partisan.

Would you do the same with the GOP and rabid partisan?

What about the Federalist Society? Are they rabid partisans?

[Lee Moore]

Assuming candidates can be found, is there any Senate rule against confirming 87 Judges in the same vote ?

[Brett Bellmore]

Well, there's the "Manchin likely wouldn't approve of that" rule. But that's more of a guideline.

Honestly, no, I don't see any actual constitutional rule that would prevent the Senate from holding one vote to confirm 87 judges at once. There would be a severe risk of embarrassment, however, if they didn't vet them first, as Biden has nominated some real doozies over the last year.

I don't believe, though, that they could take the next step, and preemptively vote to approve in advance nominees yet to be named...

[Free Exercise]

It requires unanimous consent to group multiple nominations in a single Senate floor vote. That was normally routinely done for many nominations, but Senate Democrats balked at that while trying to make it more difficult for Trump appointees by using up the limited Senate floor time. The GOP has since returned the favor for Biden nominations.

[Brett Bellmore]

"I don't see any actual constitutional rule".

There may be Senate rules that would get in the way of doing it, but they can be steamrollered.

[Sarcastr0]

Not direct knowledge, but from the nominations I've supported, I believe there is a rule that every Senator gets a chance to talk about (and maybe to!) each nominee that comes before the body should they so choose.

I suppose if all 87 were unanimous consent, that'd work. But otherwise, I don't know how much time you'd save.

[Cal Cetín]

"discourage parts of the President's base"

It's the job of the base to be disappointed, just like it's Charlie Brown's job to have the football pulled away from him.