(Reuters) – President Joe Biden’s final opportunity to make an impact on the judiciary is approaching, amid concerns from progressive advocates that he may not appoint as many judges as his predecessor, Donald Trump, did during his time in office. As the 2024 election between Biden and Trump looms, Senate Democrats are committing to confirming Biden’s judicial nominees and adding to the 166 judges who have already been approved.
After initially matching or exceeding Trump’s pace of judicial appointments in his first two years in office, Biden’s rate of appointments compared to Trump’s slowed in 2023, as Senate Republicans exerted influence and demanded negotiations over potential nominees.
Democratic former U.S. senator Russ Feingold and leader of the liberal American Constitution Society expressed concern that this slower pace puts Biden’s ability to continue diversifying the judiciary at risk, especially given the upcoming election, which will determine if he secures a second term and if the Democrats maintain control of the Senate.
Throughout his presidency, Biden has aimed to bring greater diversity to the judiciary, fulfilling a 2020 campaign promise. Two-thirds of his confirmed nominees are people of color, and 108 are women. He has frequently nominated civil rights lawyers and public defenders to counterbalance the conservative influence of Trump’s appointments.
In 2023, prominent confirmed judges included former abortion rights attorney Julie Rikelman, who is now a member of the Boston-based 1st U.S. Circuit Court of Appeals, and voting rights advocate Dale Ho, who is now serving as a federal judge in Manhattan.
Despite confirming 69 judges in 2023, a number below Trump’s third-year confirmations, Biden could potentially increase his rate in 2024 with 30 nominees announced and 53 current vacancies on the federal bench awaiting a nominee.
However, 22 of the vacancies are in states with one or two Republican senators, who have the ability to effectively veto nominees they do not approve of. Progressive groups are urging Senator Dick Durbin, the Judiciary Committee’s current Democratic chairman, to abandon the “blue slip” custom, which they say has hindered Biden’s ability to appoint judges in conservative-leaning states and much of the South.
Leah Litman, a University of Michigan Law School professor, expressed concern that this inability to nominate judges in certain states will allow Republican lawmakers to enact laws without concern courts will block them, as seen in Texas with Trump’s conservative appointments.
While Senator Durbin aims to encourage Republicans to compromise with the White House, the White House has announced its intent to nominate five new judges in states with Republican senators, including two in Texas who have the support of Senators John Cornyn and Ted Cruz.
As the year ended, Senate Majority Leader Chuck Schumer affirmed the majority’s commitment to confirming judges who diversify the bench. The big question, however, remains whether Biden will be able to nominate judges in states with Republican senators, critical for the future of the judiciary.
(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi and Alistair Bell)
