In light of the staggering news that Donald Trump will be president again, we’re staring down the barrel of him appointing dozens of 30-something Federalist Society hard-liners to the federal bench. Therefore, Democrats are racing to confirm President Joe Biden’s remaining judicial picks.
But how many will actually get through before the new president takes office and the new Senate is seated?
The tough thing about guessing how many nominations the Senate can get through is that the nomination pipeline has multiple stages. So, while 31 nominations are pending, only 17 of those have advanced out of the Senate Judiciary Committee, while eight are awaiting votes in that committee, and six have not yet had a committee hearing.
Sen. Dick Durbin, chair of the Judiciary Committee, has said he thinks that it’s possible to get roughly two dozen of those nominees confirmed in time. Of course, this is the same Durbin who said that he hopes the Republicans would agree to what the Democrats did at the end of Trump’s presidency and agree to a package of multiple judicial confirmations at once.
It’s also the same Durbin who won’t kill the blue slip tradition, where a senator from the home state of a nominee can literally refuse to send back a blue slip saying the approval can move forward.
The packed legislative calendar, combined with the holiday schedule, will make it challenging to get through all of these, particularly the six who still haven’t had a committee hearing. The Senate typically recesses for Thanksgiving week and adjourns for good on Dec. 20, with everyone going home until the new Congress is seated in January.
That leaves Democrats with even fewer calendar days to rush things through. Plus, the Senate has to deal with voting on disaster aid, a defense bill, and the pesky work of keeping the government actually funded so it doesn’t shut down.
Sen. Joe Manchin, who no one will miss.
There’s also Joe Manchin. Yes, though he’s retiring, he’s still a thorn in the side of the Democrats. Though Manchin initially reliably voted in favor of Biden’s judicial picks, in March of this year, he made up a new rule for himself, and therefore for everyone else, that he would only vote for Biden picks that had the backing of at least one Republican. Even on his way out the door, Manchin has to make it all about him.
Though it’s grim times ahead, it was awfully pleasing to see that the first post-election judicial confirmation stuck it to JD Vance. Last year, Biden nominated April Perry to be the U.S. Attorney for the Northern District of Illinois. She would have been the first woman to fill the top prosecutor job in Chicago. Vance blocked her nomination as a protest over the federal prosecutions of Trump.
Did Perry have anything to do with the prosecutions of Trump? No! Was Perry part of the Department of Justice? No! But the arcane rules of the Senate let any senator block a nomination if they feel like it. So, as time slipped away, Biden nominated her to a judicial seat instead. She was confirmed on Tuesday to a lifetime seat on the federal bench in Illinois. Take that, Vance.
The Senate also just confirmed Jonathan E. Hawley, currently a federal magistrate. Before that, Hawley spent 15 years as a public defender. Biden has made a particular commitment to diversifying the federal bench in terms of race, gender, and legal background, with over 40% of his confirmed judges having a background as public defenders or civil rights lawyers.
Biden’s deep commitment to making the federal bench more representative of the Americans it has power over is laudable and genuinely unprecedented. Thanks to the wonders of lifetime appointments, these judges will be able to exert their humanity and compassion even as Trump wreaks havoc on the rest of the judicial system.
Sen. Chuck Schumer has already teed up the next floor vote for Embry J. Kidd. Kidd is currently a magistrate judge in Florida who Biden tapped to join the Eleventh Circuit Court of Appeals. If a lone Republican will join in to satisfy Manchin, Kidd would be confirmed in plenty of time. Sens. Susan Collins and Lisa Murkowski both voted for Perry, and Murkowski voted for Hawley.
Donald Trump
Collins and Murkowski are likely to be the only GOP votes to court. Unsurprisingly, Trump has demanded that no Republican senators vote to confirm any lame-duck nominees, complaining over at Truth Social that “no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE. THANK YOU!"
Of course, when the shoe was on the other foot after his loss to Biden in 2020, Trump rammed through as many judges in his final two months as President Barack Obama did in his final two years. Prior to that, the lame-duck period had never been the site of a judicial confirmation spree, but Sen. Mitch McConnell made it his goal to push Trump nominees through in 2020.
And don’t forget that one of Trump’s lame-duck appointees, Judge Aileen Cannon, did him the ultimate solid by throwing out his classified documents criminal case on the flimsiest of pretexts. Cannon was supposedly on the short list to be Trump’s attorney general before he dropped Wednesday’s controversial surprise pick of former Rep. Matt Gaetz.
No matter what, some seats just aren’t going to be filled. Biden hasn’t named a nominee for 30 federal court vacancies, mostly in Republican states. It’s too late for anything to happen with those seats, which means Trump will inherit over two dozen vacancies in red states, vacancies he can fill with unqualified ideologues like Cannon or every GOP judge-shopper’s favorite, Matthew Kacsmaryk.
Every seat the Democrats can fill between now and Jan. 3 denies Trump the right to name another one of these disasters to the bench. While the Senate has confirmed 215 of Biden’s judicial nominees (compared to Trump’s 237), we can’t stop now.
It’s time for Senate Democrats, who are no doubt gripped with as much despair as the rest of us, to, in the words of Sen. Elizabeth Warren, “pull up our socks and get back in the fight.”
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