'Pick up the pace': Progressives urge Biden, Senate to move faster on confirming federal judges

WASHINGTON – President Joe Biden technically has more than two years to fill the vacancies that have cropped up on federal courts across the nation, his chance to leave a mark on a judicial branch many feel was transformed by his Republican predecessor.

But by Washington's standards, time is short and progressives are getting antsy.

Since his inauguration last year, Biden has moved faster to place judges on the federal bench than any president since John F. Kennedy, with 72 confirmations since mid-2021. But retirements have also continued and even some White House allies predict the administration is poised to have as many as 60 vacancies by year's end.

And if Republicans capture the Senate in the November midterms, that will make confirming Biden's judicial nominees that much harder. Senate Republican leader Mitch McConnell, R-Ky., has long made judicial nominations – slowing them for Democratic presidents and expediting them for Republican ones – a central focus of his tenure.

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"They have to pick up the pace," said Rakim Brooks, president of the liberal Alliance for Justice. "They can't leave any vacancies to Mitch McConnell because that's how you end up with people like the judge in Florida...who overruled the mask mandate."

Progressive groups acknowledge that Biden has not only moved quickly on federal judges but that he has placed a heavy emphasis on racial and professional diversity. This past week alone, the White House announced 16 district and circuit court nominees for vacancies in Pennsylvania, California, Virginia and elsewhere.

White House spokesman Andrew Bates said Biden has "led the way" on advancing "extraordinarily qualified" and diverse nominees at a "historic rate."

"Continuing that progress is a core priority for him," Bates added. "He is proud of the nominees he announced last week, and appreciates the speed with which the Senate is acting to confirm nominees."

But there have been setbacks for the White House, including backlash that erupted over one candidate in particular, former Kentucky Republican official Chad Meredith. Biden on Friday abandoned plans to nominate Meredith to a U.S. District Court judgeship in Kentucky's Eastern District. The potential nomination was first reported by The Courier Journal, drawing heated criticism from the left because Meredith had defended severalabortion restrictions as an attorney for the state.

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The angst on the left is partly a response to the remarkable speed with which McConnell and President Donald Trump moved judges to confirmation over the course of four years. It's also a reaction to how effective Senate Republicans were at blocking judges during President Barack Obama's presidency – most notably Obama's third Supreme Court nominee, Merrick Garland.

"Our concern is very much rooted in the fact that the Senate is up for grabs," said Christopher Kang, a former Obama White House aide who is chief counsel for the progressive group Demand Justice. "Every vacancy that's left open at the end of this year is a vacancy that's waiting for Mitch McConnell to block."

The concern raised on the left comes at a moment when the most powerful federal court, the Supreme Court, has not looked favorably on liberal causes. In the most recent Supreme Court term that ended in June, the 6-3 conservative majority overturned Roe v. Wade and the constitutional right to abortion it established, made it harder for states to approve gun regulations and blurred the line separating church and state.

Many of those issues will wind their way back through federal courts in coming months. In the guns case, for instance, the Supreme Court ruled that to pass constitutional muster, a gun regulation must be "consistent with this nation's historical tradition of firearm regulation." That new standard is certain to prompt a bevy of lawsuits over whether existing or new gun laws have some grounding in the nation's history.

In a major decision last month on climate change, the nation's highest court offered a muscular view of the major questions doctrine, the principle that courts can strike down federal agency regulations that aren't backed up by explicit approval from Congress when those regulations have a "major" effect on the economy or society. But what constitutes a major question wasn't well defined by the court's decision.

Lower courts will take the first stab at figuring out how to apply those new standards.

As of Sunday, there were 78 vacancies on federal courts, including eight on federal appeals courts. Biden had formally nominated 34 candidates for those openings. There are an additional 43 vacancies that are expected in coming months, according to the Administrative Office of the U.S. Courts. Those future vacancies generally happen when a judge announces they will take senior status on some future date.

Biden, a former chairman of the Senate Judiciary Committee, has nominated 16 candidates for those positions.

The pressure progressives hope to apply isn't directed at the White House alone but also the Senate. Kang's group, Demand Justice, suggests the Senate Judiciary Committee schedule more confirmation hearings, including over the August recess. The group has also suggested that the committee consider additional nominees at each hearing.

"Biden announced more judicial nominees this week than any prior week in his presidency," Brian Fallon, the group's executive director tweeted on Friday. "This is big as we try to fill every vacancy before year's end. Now we need Sen. Durbin to schedule more hearings, including in August, to process all these nominees."

Sen. Dick Durbin, D-Ill., is the Democratic chairman of the Senate Judiciary Committee.

Longstanding rules that once guided the process of confirming judges have evaporated in recent years. Senate Democrats in 2013 eliminated the ability of the minority party to block most nominees through a filibuster. Four years later, when Republicans controlled the chamber, they made a similar rule change to make it easier for the majority party to approve Supreme Court nominees with a simple majority.

Traditionally, home-state senators would return what's known as a "blue slip" to indicate support for judicial nominees. Republicans abandoned that process for appeals court judges during the Trump administration, confirming nominees that were not supported by their own senators. Democrats have also dispensed with the practice for appeals court nominees.

But even if the Senate Judiciary Committee held additional hearings and sped up the vetting of nominees, there's another bottleneck in the process: The Senate floor itself, where Democratic leaders have to balance votes on nominees against other priorities.

Aides to Durbin did not answer specific questions about additional hearings or nominees. A Durbin spokesperson who spoke on the condition of anonymity pointed to the pace with which judges have been confirmed so far and said the chairman expects pending nominees to be "confirmed swiftly" and that he would continue to negotiate "to find appropriate floor time."

Kang and other progressives want all the roadblocks cleared.

"These are all things that Republicans did during the Trump administration to consider more of his nominees," Kang said. "And it has not yet been on the table for Democrats."

Contributing: Joey Garrison, Joe Sonka

This article originally appeared on USA TODAY: Biden faces pressure from left to speed up federal judge nominations