Biden Judicial Nominations Machine Slows Amid New Hiccups

Illness-related lawmaker absences and nominee controversies have derailed Democratic plans to speed up consideration of judicial nominations this year with their outright Senate majority.

The Judiciary Committee has canceled meetings and postponed votes to get nominees to the floor. While nearly two dozen were confirmed from the first week in February through the end of March, Democrats were unable to push through some of the most high-profile nominees.

“There are a number of things coming together that are making it more frustrating to move people to confirmation,” said Carl Tobias, a law professor at the University of Richmond who studies judicial nominations.

Democrats had hoped their wider majority would boost what’s already yielded a record number of judicial confirmations and begin what’s anticipated to be a more challenging phase for selecting nominees.

Committee Slowdowns

Even though Democrats faced another potential committee setback on Tuesday over a Mississippi district court selection, Biden is still ahead of his recent predecessors on judicial confirmations into his third year. He’s got 118 as of March 29.

“How much longer that keeps up? I’m not entirely sure,” said Russell Wheeler, a Brookings Institution scholar who follows the judiciary.

Democrats sought to build momentum by clearing backlogs on the Senate floor and in the Judiciary Committee, where they hold an 11-10 advantage.

The scenario changed when Sen. Dianne Feinstein (D-Calif.) was hospitalized with shingles.

Feinstein’s absence, combined with Judiciary Committee Chair Dick Durbin (D-Ill.) out with coronavirus for part of the month, forced the panel to cancel two markups, when votes were scheduled. They also missed three other opportunities to schedule those meetings in March. Delays have prevented 10 nominees ripe for markups from getting votes.

The latest hitch is Republican-generated. Sen. Cindy Hyde-Smith (R-Miss.) said Tuesday that she won’t support the nomination of Scott Colom to be a federal trial court judge in her state. He can’t move forward if Democrats stick to committee custom on home-state senator support, which progressives are pushing them to scrap. His nomination has been pending in the Senate for months without any action.

Nomination Stumbles

The panel also experienced rare pushback from liberals over a Biden judicial selection that has slowed progress.

Michael Delaney’s consideration for the US Court of Appeals for the First Circuit has drawn criticism over his representation of a New Hampshire prep school in prior litigation with a student victim of sexual assault.

“They’ll be considering their legacy in terms of how much energy they want to expend on one nominee,” said Molly Coleman, executive director of the progressive People’s Parity Project, of the White House’s calculus on Delaney, “and is this the type of nominee who, if confirmed, would be a permanent blemish on a record that’s otherwise received a significant amount of praise.”

Floor Backlogs

Democrats hoped a 51-49 advantage would streamline efforts on the Senate floor where they have steered through the first Black woman Supreme Court justice, Ketanji Brown Jackson, and other historic Biden-appointed ‘firsts’ to the traditionally White and male judiciary.

Majority Leader Chuck Schumer (D-N.Y.) said the chamber would “keep going to confirm even more judges” as quickly as possible just before Sen. John Fetterman (D-Pa.) checked into a hospital in mid-February for treatment of depression. He’s not due back until senators return from their recess April 17.

Vice President Kamala Harris was needed on Feb. 28 and March 1 to cast tie-breaking judicial confirmation votes for the first time in Biden’s presidency.

Due to the absences, Democrats have focused floor votes on nominees who received bipartisan support in committee. But those have dwindled.

Last week’s sole nominee up for floor consideration, Matthew Brookman for an Indiana district seat, was confirmed by voice vote, or by acclamation—a rarity.

Eighteen others were ready for floor votes as of March 30, but most were reported out of committee along party lines.

Some idling on the floor were nominated more than a year ago and have attracted GOP opposition due to their progressive legal careers. They include Nancy Abudu to the Eleventh Circuit; Dale Ho to the Southern District of New York; Julie Rikelman to the First Circuit; and Rachel Bloomekatz to the Sixth Circuit. Ho was nominated in September 2021.

A Crossroad

The road ahead is more difficult since the bulk of remaining vacancies are in GOP-controlled states. A majority of current and future vacancies are spread across red states such as Texas, Florida, Indiana, and Oklahoma.

Most of Biden’s judicial appointments have been for district courts in states led by two Democratic senators, or blue states. That made it easier for him to put forward names under Judiciary Committee practice.

Biden needs to find common ground with the GOP to restock the nominee pipeline or Senate Democrats must yield to progressive pressure to accelerate things by changing the “blue slip” custom requiring unanimous home-state senator support for district court seats.

The White House and some Republicans, however, have found themselves at a crossroad on red state vacancies. They both run counter narratives on the speed and willingness of the other to negotiate.

“I wouldn’t know the White House counsel if they walked in the door,” said Judiciary Committee Ranking Member Sen. Lindsey Graham (R-S.C.) during a March 9 Senate Judiciary meeting.

Biden rolled out only four fresh nominees for lifetime appointments in March, preceded by two in February and four in January. That included Delaney and picks for seats in the red states of Louisiana, Idaho, and Kansas.

And the Judiciary Committee held only one round of confirmation hearings in March, which featured only two nominees for lifetime appointments.

Senate Democrats hope to regain strength on the floor following the April recess.

“We may look back on this in a couple weeks and say that that was just a temporary phase,” Wheeler said. “And we may look at that and say this is a start of a major slowdown.”