WASHINGTON — With an extended summer recess looming and their majority under threat in the November election, Senate Democrats faced the prospect of leaving dozens of judicial vacancies unfilled by President Biden this year. , and under pressure from progressive activists to move more quickly and aggressively to push them through.
Mr. Biden and Democrats have installed dozens of presidential picks on the federal bench to offset the conservative Trump-era footprint, a bright spot for the Biden administration despite Democrats’ tight majorities in Congress. But progressive groups have warned that unless Democrats take more aggressive action and pick up their pace, the party could lose its chance to reshape the courts.
Progressives called on Democrats to stay in session in August, when they were due to have a four-week recess, to hold hearings on the candidates, preparing them for floor votes later this fall. And they pushed Democrats to abandon the “blue slip” practice that effectively grants home-state senators veto power over nominees for federal district court judges in their states, which has limited the the administration’s ability to secure confirmation of district court nominees in states represented by Republicans.
Time is running out, activists say, because Republicans risk dramatically slowing — if not stopping — the confirmation of Biden-appointed justices if they win a majority in the midterm elections this fall. At their current pace, Democrats may not be able to fill up to 60 vacancies in the district and appellate courts by the end of the year. Federal judges have retired or achieved higher status faster than the White House has been able to identify nominees and send them to the Senate for consideration, a process that can take months.
“This is a historic opportunity to continue the wonderful strides that have been made under the Biden administration to correct the harm that has been done to the federal justice system,” said Russ Feingold, a former Democratic senator from Wisconsin who leads the American Constitution Society, a progressive legal group. “It’s time to play hardball.”
Advocacy groups lobbied through a digital ad campaign targeting Senator Richard J. Durbin, an Illinois Democrat and chairman of the Judiciary Committee, and editorials, among other tactics.
Although some Democratic allies were calling for the Senate to stay in session until August to vote on judicial nominees, that seemed unlikely. But Mr. Feingold and others have said that, at a minimum, Democrats should use the time to conduct Judiciary Committee hearings. In a break from past practice, Republicans in 2018 began holding confirmation hearings during their October recess.
The groups would also like to see Democrats increase the number of candidates considered at each hearing.
“Republicans held recess hearings to move more Trump judges, and now Democrats should do the same,” said Chris Kang, general counsel for Demand Justice, a progressive group. “It’s not radical – there is recent precedent that just needs to be followed.”
The Biden presidency
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When the Republican majority and Donald J. Trump’s presidency seemed in jeopardy in 2020, Senator Mitch McConnell, the Republican from Kentucky who was then Majority Leader, embraced the mantra of “leaving no vacancy behind” and followed a policy of trying to fill all possible positions. judicial opening before a change of power. But Republicans had not been at the mercy of Democrats for cooperation, as they had a slightly larger majority that offered more flexibility.
Senate Democrats say no one wants to keep confirming Biden-appointed justices more than they do, but given the 50-50 Senate and the equally divided Judiciary Committee, they don’t have the leeway Mr. McConnell had in the past. over the past years. They see the confirmation of 74 justices so far in the past two years – including a new Supreme Court justice – as a major achievement, and they say there is a real possibility of surpassing 100 by the end of the year.
“We’re doing fantastic things,” said Sen. Chuck Schumer, a New York Democrat and Majority Leader, who has long been interested in court confirmations.
Democrats also warned of the risks of getting too aggressive in advancing candidates given the 11-11 split in the judicial panel, which oversees the confirmation process. The committee has already had to juggle lawmakers’ regular absences 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 candidates to the floor, and Democrats say a Republican backlash to Democratic heavy-handedness could lead to fewer candidates to speak. the judiciary, no more.
“We’ve done very well so far, we’ve got a number of judges passing,” Mr Durbin said. “If I get confrontational, it’s just tempting fate.”
Mr. Durbin and other Democrats have said they are considering the idea of holding confirmation hearings even during the Senate break because they may indicate that Republicans have done so in the past.
“We are discussing options based on precedents,” Mr. Durbin said in an interview. “You have to be able to say to the Republicans: ‘This is what you have done; this is what we want to do.
Mr. Durbin leveraged his working relationship with top Republicans on the committee to keep the confirmation train rolling despite intense partisanship from many candidates. A few Republicans, including Senators Lindsey Graham of South Carolina and Thom Tillis of North Carolina, also provided some support, sparing Democrats time-consuming floor votes to “remove” committee nominees in the event of a deadlock.
“Several Republican senators have been accommodating,” Durbin said.
He and his fellow Democrats worry that such cooperation will disappear if they push Republicans to the wall. And Democrats fear that removing the power of the blue slip could backfire in a future Republican presidency.
The concern among Democrats is that if Republicans take control of the Senate early next year, Mr. McConnell, the minority leader who is used to playing hardball with judicial candidates, will prevent Mr. Biden to fill most of them in hopes of a Republican winning the White House in 2024. When Mr McConnell became majority leader in 2015, he slowed court confirmations to a trickle during the final years of the administration of Barack Obama.
Democrats say their chance to get the justices through may not happen again for some time if they lose a majority.
“The fact that you are going to leave 60 vacancies for McConnell should be very alarming to everyone,” said Kang, who worked on judicial appointments in the Obama White House and was also a former lawyer for Mr. Durbin.
In a recent interview, Mr McConnell seemed to suggest that liberal activists were right to worry about what he and Republicans would do about the vacancies on the bench if Democrats failed to hold on to the Senate.
“If they lose the Senate, I would keep everyone here as long as I can get enough attendance to fill all the vacancies before the end of the year,” he said. “Which does not mean that we are going to stop everything. But that’s what I would do.