September 9, 2024
Senate Should Continue to Confirm Judges to Prevent September Slippage
ACS President
Despite the White House and Senate hitting the 200th judicial confirmation milestone in May, President Biden is set to fall behind former President Trump’s pace in judicial confirmations when the Senate returns this week. With zero Article IIII confirmations in June and only four in July, the current administration enters September only two confirmations ahead of its predecessor.
Through the end of August of his fourth year, Trump had 203 confirmed judges. Biden is currently at 205. While this is encouraging, the daunting task is closing these final four months of 2024 strong. By the end of his term, Trump had 234 Article III judges confirmed. This means the Mitch McConnell-led Senate confirmed 34 judges in the back quarter of 2024. In fact by the end of September 10 of the fourth year, Trump and McConnell were at 208 confirmations. This means barring a surprising Tuesday, September 10, Biden and the Schumer will essentially start the September work prior trailing their predecessors.
McConnell and company were able to do this by heavily prioritizing judicial confirmations, seemingly at all times. In September 2020, there were 15 confirmations and there were another 14 confirmations in the lame duck period after the 2020 election. Not to mention that in October they were able to cram through a Supreme Court confirmation in the middle of a general election. In short, McConnell and the Senate often prioritized judicial confirmations over everything, in part because of the painfully obvious importance each of these lifetime seats holds.
Entering the week of September 9, there are only eight scheduled work weeks left in the Senate this calendar year. Only three of which are before the election, as the Senate is currently scheduled to be gone nearly all of October. This means to match their predecessors the Senate needs to an average of just over three and a half confirmations a week every remaining scheduled work week to keep pace. This is tough, but achievable.
The good news is the White House has continued to announce slate after slate of judicial nominees. As of this writing, there are 36 announced nominees in the Senate. Filling all of these seats would bring the Biden administration ahead of the Trump administration.
Beyond the vacancies with names already public, there is one known circuit court vacancy and two district court vacancies in states with two Democratic Senators. This means at minimum there are three additional vacancies that the White House and Senate can fill that do not face potential blue slip obstruction under the current norms.
To its credit, the Senate Judiciary Committee has done a good job at advancing the White House’s judicial nominees in a timely and effective manner. As of the end of the last Senate work period, of the 36 announced nominees: 21 are waiting for votes on the Senate floor, six are waiting for committee votes, and only nine are waiting for a hearing before the committee. The hold up often remains the Senate’s ability to successfully invoke cloture and eventually confirm these nominees.
Right now, a majority of the nominees on the Senate floor advanced out of committee on party line votes. This means in a 51-49 Senate where not all votes in the Democratic caucus are assured for judicial nominations, that the majority has to often fight tooth and nail to confirm each of these nominees.
Fortunately, the Senate majority controls the Senate calendar, and some creative thinking may need to occur to ensure that the Biden administration matches, or surpasses, the 234 confirmations of the Trump administration.
One potential avenue is working into the October recess. Even an additional week could help ease the burden of needing to average just over three and a half confirmations a week. Furthermore, the Senate majority can also give itself more time during the week. The typical Senate work week is Monday evening through Thursday afternoon, but it is routine to expand the calendar for priorities or urgent matters. Judicial confirmations qualify as both. Staying on a Friday, when attendance might be lighter, to confirm judicial nominees would be a worthy cause. Finally, the Senate must be ready to act on judicial nominees in a lame duck period. As we saw in 2020, the Senate confirmed over a dozen judges in the lame duck period. This Senate must be ready and willing to do the same.
With the 2024 election looming, one thing is for certain. Each confirmed judge is another achievement in the President’s legacy. These judges will serve for life and rule on so many of the issues we hold dear. Whether it’s reproductive rights, the environment, or LGBTQ+ rights, judges make decisions that impact all of us. While the current majority still controls the White House and the Senate, judicial confirmations must be a top priority.