December 26th 2023.
The White House is preparing for what could be President Joe Biden's last chance to leave a mark on the judiciary, as progressive advocates worry he may not appoint as many judges as former President Donald Trump did over his four-year term. The Senate Democrats are focusing on confirming Biden's judicial nominees in 2024; 166 have already been approved.
The rate of Biden's appointments compared to Trump's has slowed in 2023, as Senate Republicans used their influence to force the White House to bargain with them over potential nominees. This has put Biden's goal to bring greater diversity to the judiciary in jeopardy, as an upcoming election will decide whether he gets a second term and Democrats retain control of the Senate.
Two-thirds of the confirmed nominees are people of color, and 108 have been women, according to the Leadership Conference on Civil and Human Rights. Biden has nominated civil rights lawyers and public defenders to balance Trump's 234 judicial appointees. Julie Rikelman, a former abortion rights attorney, and Dale Ho, a voting rights advocate, have been prominent judges in 2023.
Senate Majority Leader Chuck Schumer said on the Senate floor on Dec. 11 that the Senate has prioritized confirming diverse judges to the bench. However, they have confirmed fewer judges this year than Trump did in his third year. The Senate Judiciary Committee has struggled to process nominees due to the absence of an ailing Senator Dianne Feinstein.
Biden could make up for the slow down in 2024. He has announced 30 other nominees who have yet to be confirmed, and there are 53 vacancies on the federal bench awaiting a nominee. But, 22 of these vacancies are in states with one or two Republican senators, who have the ability to veto nominees they do not approve of.
Progressive groups have urged Senator Dick Durbin to abandon the “blue slip” custom, which they believe has hindered Biden's ability to appoint judges in conservative-leaning states and much of the South. If Biden is unable to nominate judges in those states, Republican lawmakers will be able to enact laws without any concern that the courts will block them.
The White House has reported successes in nominating district court judges from Indiana, Idaho, and Louisiana. Biden also announced he intends to soon nominate five new judges in states with Republican senators, including two in Texas with the support of Senators John Cornyn and Ted Cruz.
Biden's ability to appoint judges in 2024 could determine the future of the judiciary. Progressive advocates are encouraging the Senate to abandon the “blue slip” custom so that the President can nominate diverse judges in a timely manner. This will ensure that laws enacted by Republican lawmakers are not blocked by the courts.
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