Last week, the U.S. Senate returned for a lame duck session, tentatively scheduled to end on Dec. 20.
President Joe Biden, Senate Majority Leader Chuck Schumer, D-New York, and Judiciary Committee Chair Dick Durbin, D-Illinois, have pledged to confirm many of the two dozen well-qualified, mainstream federal judicial nominees whom Biden tapped before former President Donald Trump won the 2024 presidential election.
Here is how Democrats may keep this promise.
U.S. Senate Majority Leader Chuck Schumer (center) meets with Sen.-elect Andy Kim (from left), Sen.-elect Ruben Gallego (D-AZ), Sen.-elect Angela Alsobrooks, Sen.-elect Adam Schiff, Sen.-elect Lisa Blunt Rochester and Sen.-elect Elissa Slotkin at the U.S. Capitol House in Washington on Nov. 12, 2024.
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Court appointees are waiting
In September, when the upper chamber departed Washington to campaign, it had appointed one justice, 44 circuit judges and 166 district jurists, all of whom are highly qualified and moderate. Now, four circuit nominees await confirmation votes, a fifth waits on committee approval and a confirmation ballot, while 11 district nominees await confirmation votes and seven others wait for panel reports and Senate confirmation ballots. A few more nominees also await hearings, committee approval and confirmation votes.
By the same juncture in Trump’s first term — Nov. 12, 2020 — he had appointed three extremely conservative justices, 53 similar appeals court judges and 164 comparatively analogous district jurists. In the lame duck session after Biden defeated Trump, the latter confirmed one additional circuit judge on Dec. 15, and 10 more district jurists. Thus, to ensure balance in the courts, Biden and the Senate must appoint the 20-plus lower court aspirants whom Biden nominated before Election Day.
The chamber first easily confirmed April Perry, because the Northern District of Illinois nominee secured a powerful Sept. 25 unanimous agreement to hold a confirmation ballot, which she won 51-44 on Nov. 12, the day the ballot returned. The chamber agreed 50-48 to end debate for Central District of Illinois nominee Jonathan Hawley, and confirmed him 50-46 the following day.
On Nov. 20, the committee should convene a hearing for two new candidates whom Biden tapped during the recess.
Who’s up?
On Nov. 14, the committee held a discussion and vote for Ryan Park, the North Carolina solicitor general, Biden’s Fourth Circuit nominee. The panel should reject as unfounded the earlier accusation of Senator Thom Tillis (R-NC) that Biden had not consulted the home state senators, while the committee approved Park on an 11-10 party-line vote. The panel also approved District of Arizona nominee Sharad Desai on a voice vote with a few GOP senators voting no. Chair Durbin concomitantly attempted to conduct discussions and ballots on Nov. 14 for the five other district court nominees, who received Sept. 25 hearings and need panel votes. However, the GOP requested that the committee hold the five remaining nominees over a week, as its rules allow.
During this first week, the majority leader should have pursued unanimous consent agreements to hold confirmation votes for the 11 remaining district nominees, who each received 11-10 party line approval in committee. But this appeared unlikely, because Republicans had agreed to voice votes for only six in 166 district nominees — but allowed Desai’s voice vote.
If the GOP rejects unanimous consent, Schumer must later provide nominee cloture ballots, floor debates and confirmation votes. The nominees may rather easily secure confirmation, because Democrats retain the majority through the lame duck session, although final ballots might be close. District nominees require merely two hours of post-cloture debate time. Should Democrats lack time at the session’s end, they can invoke the “vote-a-rama” procedure, which allows many district nominees to realize confirmation every two hours.
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Don’t forget the circuit courts
Schumer also needs to keep in mind the four very experienced circuit nominees who have panel approval: Julia Lipez for First Circuit, Adeel Mangi for Third Circuit, Karla Campbell for Sixth Circuit and Embry Kidd for Eleventh Circuit. The majority leader did conduct a cloture vote for Kidd, who earned a 49-44 ballot on Thursday and should be confirmed by a similar margin this week.
Appellate nominees are more difficult to confirm; there are fewer court of appeals judges, the circuits enunciate greater policy and their rulings govern multiple states. These ideas explain why both parties closely scrutinize those nominees. All 10 GOP committee members voted against the four nominees. And circuit nominees may require 30 hours of post-cloture debate.
Getting these judges confirmed will be challenging, given the potential for partisan rancor after the election.
The endeavor is worthwhile, and crucial to ensuring appropriate political balance on the federal courts.
In Trump’s first term, he and the GOP Senate majorities filled the lower federal courts — especially circuits that are the courts of last resort in 99% of appeals — with 44 exceptionally conservative judges and confirmed 13 jurists —after he lost the 2020 election.
Biden pledged to reestablish balance, and he clearly honored that vow by nominating and confirming nearly 50 excellent, mainstream circuit nominees, who are highly competent and diverse vis-à-vis experience, ideology, ethnicity, gender and sexual orientation.
By pressing to confirm nominees across the lame duck session, Biden would cement his powerful judicial selection legacy.
Carl Tobias is the Williams Chair in Law at the University of Richmond. Submit a letter to the editor at freep.com/letters and we may publish it online and in print.
This article originally appeared on Detroit Free Press: Senate must confirm Biden judges before Trump returns | Opinion
