As the possibility of a November 2024 election rematch between President Joe Biden and his Republican predecessor looms, the White House is preparing for a critical juncture that could significantly shape Biden’s legacy in the judiciary. Progressive advocates express concerns that Biden may not surpass former President Donald Trump’s impressive track record of judicial appointments over his four-year term.
Slowdown in Judicial Appointments
Despite initially matching or exceeding Trump’s pace of judicial appointments, Biden faced a slowdown in 2023. Senate Republicans, flexing their influence, engaged in negotiations with the White House over potential nominees, impacting the President’s ability to maintain momentum in diversifying the judiciary.
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Risks and Concerns
Russ Feingold, a prominent figure in the liberal American Constitution Society, emphasizes the risk this slowdown poses to Biden’s goal of appointing diverse judges. With an impending election that could determine his second term and Democrats’ control of the Senate, the progress made so far could be jeopardized.
Diversity in Judicial Appointments
Throughout his tenure, Biden has been committed to fulfilling his 2020 campaign pledge of bringing greater diversity to the judiciary. According to the Leadership Conference on Civil and Human Rights, approximately two-thirds of Biden’s confirmed nominees are people of color, and 108 are women. The President has consistently nominated civil rights lawyers and public defenders to counterbalance the conservative influence of Trump’s appointees.
Prominent Confirmed Judges
Notable judges confirmed in 2023 include Julie Rikelman, a former abortion rights attorney now on the Boston-based 1st U.S. Circuit Court of Appeals, and Dale Ho, a voting rights advocate serving as a federal judge in Manhattan.
Senate Dynamics and 2024 Outlook
In 2023, the Senate confirmed 69 judges, falling short of Trump’s third-year pace of 102 confirmations. Challenges within the Senate Judiciary Committee, including the absence of Democratic Senator Dianne Feinstein, contributed to the slower pace.
Potential for Recovery in 2024
Biden aims to make up for the slowdown in 2024, having announced 30 nominees awaiting confirmation. With 53 current vacancies on the federal bench and more expected, there is a theoretical possibility of matching Trump’s four-year total.
Challenges in the vRed States
However, 22 vacancies are in states with one or two Republican senators who, through the “blue slip” custom, can effectively veto nominees they disapprove of. The ability to nominate judges in conservative-leaning states and much of the South remains a significant challenge.
Calls to Abandon the “Blue Slip” Tradition
Progressive groups urge Senator Dick Durbin, the Judiciary Committee’s current Democratic chairman, to abandon the “blue slip” custom, arguing that it hinders Biden’s ability to appoint judges in conservative-leaning states. Concerns persist that without the ability to nominate judges in these states, Republican lawmakers could enact laws without fear of judicial intervention.
Republican Influence in Texas
The impact of Republican blockades is evident in Texas, where Trump filled multiple vacancies with conservative judges sympathetic to challenges to Biden’s policies. One such judge, U.S. District Judge Matthew Kacsmaryk in Amarillo, suspended approval of the abortion pill mifepristone pending U.S. Supreme Court review.
Durbin’s Stand
Senator Durbin acknowledges the prolonged vacancies in states with Republican senators but upholds the tradition, encouraging Republicans to demonstrate compromise with the White House. Recent successes, including district court judges confirmed in 2023 from Indiana, Idaho, and Louisiana, provide some validation for this approach.
Recent Developments
As 2023 concluded, Biden announced plans to nominate five new judges in states with Republican senators, signaling a potential shift. Two of these nominations in Texas have the support of Senators John Cornyn and Ted Cruz.
In the coming months, Biden’s ability to navigate the Senate dynamics and fulfill his judicial appointments will be crucial in shaping the judiciary and defining his legacy.
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