WASHINGTON — With an extended summer recess approaching and their majority in jeopardy in the November election, Senate Democrats faced the prospect of having dozens of judicial vacancies go unfilled this year by President Biden, and pressure from progressive activists to act faster and more aggressively to push them through.
Biden and Democrats have installed dozens of the president’s picks on the federal bench to offset the conservative impression of the Trump era, a bright spot for the Biden administration despite Democrats’ slim majority in Congress. But progressive groups warned that unless Democrats take more aggressive steps and accelerate their pace, the party could lose its chance to reshape the courts.
Progressives have called on Democrats to stay in office in August, when they would have a four-week recess, to hold hearings on nominees, only to vote them on the ground later this fall. And they have urged Democrats to abandon the “blue slip” practice that effectively grants veto power to home state senators over candidates for federal district court judges in their states, affecting the government’s ability to obtain confirmation from district court candidates in their states. states represented by Republicans.
Time is of the essence, activists argue, as Republicans are likely to drastically slow — if not stop — the confirmation of Biden-nominated judges if they win the majority in midterm elections this fall. At their current pace, Democrats face the prospect of not being able to fill as many as 60 vacancies in districts and appellate courts by the end of the year. Federal judges have retired or received higher status faster than the White House has been able to identify and send nominees to the Senate for consideration, a process that can take months.
“This is a historic opportunity to continue the wonderful progress made under the Biden administration to repair the damage done to the federal judiciary,” said Russ Feingold, a former Democratic senator from Wisconsin who represents the American Constitution Society. leads. a progressive legal group. “This is a time to play hard.”
The advocacy groups have exerted pressure, among other things, through a digital advertising campaign targeting Senator Richard J. Durbin, Illinois Democrat and chairman of the Judiciary Committee, and opinion pieces.
While some Democratic allies demanded that the Senate remain in session through August to vote on court nominees, that seemed unlikely. But Mr Feingold and others said Democrats should at least use the time to conduct Judiciary Committee hearings. In a break from past practices, Republicans began holding hearings in 2018 during their August recess.
The groups would also like to see Democrats increase the number of nominees considered at each hearing.
“Republicans held hearings during the recess to move more Trump judges, and Democrats should do the same now,” said Chris Kang, general counsel for Demand Justice, a progressive group. “This isn’t radical — there’s a recent precedent for it that just needs to be followed.”
The Biden Presidency
With the midterm elections approaching, this is where President Biden stands.
When the Republican majority and Donald J. Trump’s presidency seemed in jeopardy in 2020, Senator Mitch McConnell, the Kentucky Republican then the majority leader, adopted a mantra of “don’t leave a vacancy” and followed a policy of trying to fill every possible judicial gap before a power shift. But Republicans were not at the mercy of Democrats for cooperation, as they had a slightly larger majority that allowed for more flexibility.
Senate Democrats say no one Biden-nominated judges want to confirm more than they do, but given the 50-50 Senate and the evenly divided Judiciary Committee, they don’t have the leeway that Mr. McConnell had in recent years. They see the confirmation of 74 judges so far in the past two years — including a new Supreme Court justice — as a significant achievement, and they say there is a real possibility of crossing 100 by the end of the year.
“We’re doing a fantastic job,” said Senator Chuck Schumer, the New York Democrat and majority leader, who has long taken a deep interest in court confirmations.
Democrats have also warned of the dangers of becoming too aggressive in promoting nominees, given the 11-11 split in the judicial panel, which oversees the confirmation process. The committee has already had to juggle regular absences from lawmakers due to the coronavirus and other health concerns.
Judiciary Committee rules require at least one Republican to be present to conduct business, such as voting to send nominees to the floor, and Democrats say a Republican response to Democratic heavy-handedness could lead to fewer judicial nominees coming forward. come, no more.
“We have done very well so far, we have some judges who are going ahead,” said Mr. Durbin. “When I confront it, it’s just defying fate.”
Mr. Durbin and other Democrats said they were considering the idea of holding hearings even while the Senate was on hiatus because they could point to Republicans doing this in the past.
“We are discussing options based on precedents,” Mr Durbin said in an interview. “We need to be able to say to Republicans, ‘This is what you did; this is what we want to do.’ ”
mr. Durbin has leveraged his working relationship with the top Republicans on the committee to keep the confirmation train going despite intense partisanship over many nominees. A few Republicans, including Senators Lindsey Graham of South Carolina and Thom Tillis of North Carolina, have also lent some support, saving Democrats the time-consuming ballot on the ground to “fire” nominees from the committee in the event of a deadlock. .
“Several Republican senators have been accommodating,” said Mr. Durbin.
He and his fellow Democrats fear that such partnership could disappear if they push Republicans against the wall. And Democrats are concerned that eliminating the blue slip power could backfire on them during a future Republican presidency.
The concern for Democrats is that if Republicans take over the Senate early next year, Mr. McConnell, the minority leader with a history of hardballing court nominees, will prevent Mr. Biden from filling most of them in hopes of a Republican who won the White House in 2024. When Mr. McConnell became majority leader in 2015, he delayed court confirmations to a trickle for the final years of Barack Obama’s administration.
Democrats say their chance to push judges through may not come for a while if they lose the majority.
“The fact that you leave 60 job openings open for McConnell to block should be very alarming to everyone,” said Mr. Kang, who worked on judicial nominations at the Obama White House and was also a former counsel for Mr. Durbin. .
In a recent interview, Mr. McConnell seemed to suggest that liberal activists were justifiably concerned about what he and the Republicans would do regarding judge job openings if Democrats fell short in their push to hold the Senate.
“If they lose the Senate, I’d keep everyone here as long as I could get enough attendees to fill every vacancy I might have before the end of the year,” he said. “That doesn’t mean we’re going to close everything. But that’s what I would do.”