July 15, 2022

[Above, an ad from Alliance for Justice calls for all judicial vacancies to be filled by 2023. -- eds.]

President Joe Biden and Majority Leader Chuck Schumer had a tremendous 2021 when it came to getting federal judges appointed. The number, the quality, and the diversity of those judges is laudable. The record in 2022, with the notable exception of Supreme Court Justice Ketanji Brown Jackson, has been a little less than stellar.

They’ve slowed to a trickle, something that’s alarmed progressive groups looking toward the potential of a Mitch McConnell-controlled Senate in 2022, and seeing disaster. They’re pushing to have Biden fill all of the remaining judicial vacancies.

“As the number of announced judicial vacancies has risen to 119, we urge you to redouble your efforts in the final seven months of this Congress,” the organizations, including Demand Justice, MoveOn, and NARAL Pro-Choice America, wrote to Biden and Senate leadership. “At the current pace, dozens of these vacancies will remain unfilled at the end of the year, and we urge you to do whatever it takes to fill them all.” Of those 119 vacancies, there are around 80 that don’t have nominees.

That letter was sent June 21, before the final disastrous week of Supreme Court decisions, which only added to the urgency of their plea. There has to be a block in the lower courts to the extremist right-wing cases being pushed up the conveyor belt to the Trump-packed Supreme Court. “We are painfully aware that, should the Republican Party take control of the Senate in this year’s midterm elections, progress on balancing the federal courts will come to a grinding halt,” the groups said. “Senate Minority Leader McConnell has repeatedly made plain his plans to obstruct should he have the opportunity to become majority leader in January—just as he obstructed President Obama’s judicial nominees, leading to the fewest judicial confirmations since 1952.”

The response from Biden, Schumer, and Judiciary Chairman Dick Durbin has been ... not great. Biden has been sending nominees—five this week—but has created an unnecessary complication by deciding to cut a deal he made with McConnell on Chad Meredith, the young, extremist anti-abortion Kentuckian who was too problematic for Donald Trump to nominate.

And the Senate Judiciary has become a bottleneck. Both the White House and the committee have been insisting on adhering to the outdated courtesy of the White House giving deference on nominees to home state senators, and the committee waiting until they have “blue slips” from those senators to proceed with nominations. The problem isn’t entirely Republicans, as Demand Justice’s Chris Kang noted in Slate last week. Democrats haven’t been stepping up.

“In California alone, there are nine district court vacancies without nominees—five of which were announced more than a year ago,” Kang writes. “Time is running out, and the White House needs to start enforcing its request by bypassing senators where necessary.”

Durbin needs to step up as well and get rid of blue slips as a barrier to getting judges confirmed. He also needs to start fast-tracking nominations. If the current process and timeline for nominees is sustained for the remainder of the year, more than 60 seats will be left vacant. Letting McConnell have control over those several dozens of seats would be political malpractice.

But right now, there doesn’t seem to be any sense of urgency. Kang quotes one judiciary committee aide who told Bloomberg News recently, “I don’t think there’s any reason for us to change the way we’re operating.” Needless to say, this isn’t the path Republicans have chosen when in power. While Trump was president and McConnell controlled the Senate, they pushed circuit court nominees through without Democratic senators’ approval.

All of this makes Biden’s deal with McConnell—one young, anti-abortion zealot judge for potential judges and/or prosecutors to be named later—all the more frustrating. It’s unnecessary, if Biden and Democratic leadership would acknowledge reality and fix it. Get the nominations settled fast, and process them fast, and don’t let Republicans stop them. This is entirely in their power to do.

Democrats have to realize they’re playing asymmetrical warfare with Republicans. There are no rules as far as McConnell is concerned, and he will exploit Democrats’ yearning to adhere to them, to preserve Senate traditions, to the bitter end. Which at the rate we’re going, will be the bitter end of this democratic experiment and permanent minoritarian rule.

Republished with permission from Daily Kos.

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