Despite Biden’s Success on Judges, Progressives Demand a Faster Pace

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President Joe Biden and Democrats have installed dozens of the president’s picks on the federal bench, but progressive groups warn the party could lose its chance to reshape the courts unless it picks up the pace. (Pete Marovich/The New York Times)

WASHINGTON — With an extended summer recess approaching and their majority in jeopardy in the November election, Senate Democrats faced the prospect of dozens of judicial vacancies left unfilled this year by President Joe Biden, and under pressure from progressive activists to push them through faster and aggressively.

Biden and Democrats have placed dozens of the president’s picks on the federal bench to offset the conservative impression of the Trump era, a bright spot for the Biden administration despite Democrats’ slim majority in Congress. But progressive groups warned that unless Democrats took more aggressive steps and accelerated their pace, the party could lose its chance to reshape the courts.

Progressives have called on Democrats to stay in office in August, when they had a four-week recess, to hold hearings on nominees, only to vote them on the ground later this fall. And they have urged Democrats to abandon the “blue slip” practice that effectively grants veto power to home state senators over candidates for federal district court judges in their states, affecting the government’s ability to obtain confirmation from district court candidates in their states. states represented by Republicans.

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Time is of the essence, activists argue, as Republicans are likely to drastically slow — if not stop — the confirmation of Biden-nominated judges if they win the majority in midterm elections this fall. At their current pace, Democrats face the prospect of not being able to fill as many as 60 vacancies in districts and appellate courts by the end of the year. Federal judges have retired or received higher status sooner than the White House has been able to identify and send nominees to the Senate for consideration, a process that could take months.

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“This is a historic opportunity to continue the wonderful progress made under the Biden administration to repair the damage done to the federal judiciary,” said Russ Feingold, a former Democratic senator from Wisconsin who represents the American Constitution Society. leads. a progressive legal group. “This is a time to play hard.”

The advocacy groups have exerted pressure through a digital advertising campaign targeting Senator Dick Durbin, D-Ill. and the chairman of the Judiciary Committee, and op-eds, among other tactics.

While some Democratic allies demanded that the Senate remain in session through August to vote on court nominees, that seemed unlikely. But Feingold and others said Democrats should at least use the time to conduct Judiciary Committee hearings. In a break from previous practices, Republicans began holding hearings in 2018 during their October recess.

The groups would also like to see Democrats increase the number of nominees considered at each hearing.

“Republicans held hearings during the recess to move more Trump judges, and Democrats should do the same now,” said Chris Kang, general counsel for Demand Justice, a progressive group. “This is not radical; there is a recent precedent for it that just needs to be followed.”

When the Republican majority and Donald Trump’s presidency seemed in jeopardy in 2020, Senator Mitch McConnell, R-Ky., who was then the majority leader, adopted a mantra of “leave no vacancy” and followed a policy of trying to possible judicial opening before a change of power. But the Republicans were not at the mercy of the Democrats for cooperation, as they had a slightly larger majority that allowed for more flexibility.

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Senate Democrats say no one Biden-nominated judges want to confirm more than they do, but given the 50-50 Senate and the evenly divided Judiciary Committee, they don’t have the leeway that McConnell had in recent years. They see the confirmation of 74 judges so far in the past two years — including a new Supreme Court justice — as a significant achievement, and they say there is a real possibility of crossing 100 by the end of the year.

“We’re doing a fantastic job,” said Senator Chuck Schumer, DN.Y. and majority leader, who has long had a deep interest in judicial confirmations.

Democrats have also warned of the dangers of becoming too aggressive in promoting nominees, given the 11-11 split in the judicial panel, which oversees the confirmation process. The committee has already had to juggle regular absences from lawmakers 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 nominees to the floor, and Democrats say a Republican response to Democratic heavy-handedness could lead to fewer judicial nominees coming forward. come, no more.

“We’ve done very well so far. We have some judges who are moving forward,” said Durbin. “When I confront it, it’s just defying fate.”

Durbin and other Democrats said they were considering the idea of ​​holding hearings even while the Senate was on hiatus because they could point to Republicans doing this in the past.

“We are discussing options based on precedents,” Durbin said in an interview. “We need to be able to say to Republicans, ‘This is what you did; this is what we want to do.”

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Durbin has used his working relationship with the top Republicans on the committee to keep the confirmation train going despite intense partisanship over many nominees. A few Republicans, including Sens. South Carolina’s Lindsey Graham and North Carolina’s Thom Tillis have also provided some support, saving Democrats the time-consuming ballot on the ground to “fire” nominees from the committee in the event of a deadlock.

“Several Republican senators have been accommodating,” Durbin said.

He and his fellow Democrats fear that such partnership could disappear if they push Republicans against the wall. And Democrats are concerned that eliminating blue-slip power could backfire on them during a future Republican presidency.

The concern for Democrats is that if Republicans take over the Senate early next year, McConnell, the minority leader with a history of hardballing court nominees, will prevent Biden from filling most of them in hopes that a Republican will win the election. wins. White House in 2024. When McConnell became majority leader in 2015, he delayed court confirmations to a trickle for the final years of Barack Obama’s administration.

Democrats say their chance to push judges through may not come for a while if they lose the majority.

“The fact that you’re leaving 60 job openings for McConnell to block should be very alarming to everyone,” said Kang, who worked on judicial nominations at the Obama White House and was also a former defense attorney for Durbin.

In a recent interview, McConnell seemed to suggest that liberal activists were rightly concerned about what he and the Republicans would do with job openings for judges if the Democrats fell short in their bid to hold the Senate.

“If they lose the Senate, I’d keep everyone here as long as I could get enough attendees to fill every vacancy before the end of the year,” he said. “That doesn’t mean we’re going to close everything. But that’s what I would do.”

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