Court Picks Face Trickier Path as Senate Eyes Red-State Judges

The Senate Democrats’ pace of muscling through judicial confirmations may slow down as the chamber pivots to more controversial nominees and vacancies where Republicans can throw up roadblocks.

Until recently, Democratic leadership was able to confirm President Joe Biden’s nominees at a rapid clip largely because they came from more Democratic states or were consensus picks.

These days Senate Majority Leader Chuck Schumer (D-N.Y.) is expending more floor time on nominees that squeak through on party-line votes, while senior senators and the White House are engaged in negotiations over vacancies in GOP strongholds in the South.

“The number of vacancies that are left that President Biden and the Senate Democrats can move forward with without Republican objection is narrowing,” said Chris Kang, cofounder and chief counsel of the progressive group Demand Justice.

With the prospect they could well lose control of the Senate after the 2024 elections, Democrats are under a time pressure to populate the federal judiciary with like-minded judges. They have been seeking to shift the ideological balance of the judiciary after Republicans were able to fill key vacancies during the Donald Trump years.

Senate Judiciary Chair Dick Durbin (D-Ill.) said filling appellate court vacancies is a high priority

Photographer: Samuel Corum/Bloomberg

Biden has already seen his nominees for the US Court of Appeals for the First Circuit and Kansas’ district court withdrawn in the last month. He also allowed his judicial selection for the Eastern District of Wisconsin to lapse this year in the face of Sen. Ron Johnson’s (R-Wis.) opposition.

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Schumer has teed up floor votes this week on Dale Ho, director of the ACLU’s Voting Rights Project, more than a year and a half after Biden nominated him to be a judge for the Manhattan-based Southern District of New York.

The Democratic leader’s move to advance Ho and Nancy Abudu — who the Senate narrowly confirmed last month to the US Court of Appeals for the 11th Circuit — follows the return of Sens. Dianne Feinstein (D-Calif.) and John Fetterman (D-Pa.) from extended health-related absences.

With those senators back, the leaders now have a little more room to maneuver in tight floor votes as more moderate Democrats facing tough re-elections, such as Sen. Joe Manchin (W.Va.), start to oppose Biden’s more controversial nominees.

Two appellate judge picks who’ve won committee approval still await floor votes: Rachel Bloomekatz for the US Court of Appeals for the Sixth Circuit, and Julie Rikelman for the First Circuit. Of the 21 nominees ready for confirmation votes, only eight got GOP support in the Judiciary Committee and could again face party-line votes in the full Senate.

Judiciary Chair Dick Durbin (D-Ill.) last week called filling appellate courts “a high priority.” He deferred to Schumer on when the Senate would hold more judicial confirmation votes but identified the current month-long session as a prime time to do so.

“He understands this work period is important,” Durbin said. “I hope he’ll use this four-week period to call as many as he can.”

Red-State Courts

Once remaining appellate and blue state district court vacancies are filled, Democrats will need to turn more to nominees in states represented by two Republicans in the Senate.

Senators can veto nominees to district courts in their home state by withholding a “blue slip,” compelling the White House to work with senators to negotiate court picks.

“I think that’s what the American people are looking for: more evidence we’re trying to find common ground, despite the obvious political differences in this case,” Durbin said.

Blue slips no longer apply to appellate court nominees after Republicans got rid of the practice during the Trump administration.

More of Biden’s judicial nominees were confirmed in his first two years than Trump or former President Barack Obama experienced at the same point in their tenures, according to the Brookings Institution. The vast majority of the more than 125 judicial nominees confirmed so far have come from large blue states like New York and California. Stalled negotiations between the Trump administration and Democratic senators left dozens of vacancies in those states.

Now, a majority of trial court vacancies are in states represented by at least one Republican senator.

While many of those vacancies lack even a nominee to fill them, that could soon change.

Sen. John Cornyn (R-Texas) told reporters last week “we’re ready to make recommendations to the White House” for “a couple of seats” after working with the White House to nominate Irma Carrillo Ramirez to a vacancy on the Fifth Circuit. Biden has yet to nominate anyone for the seven current district court vacancies in the Lone Star State.

“It’s working the way it should,” said Cornyn, a senior member of the Judiciary Committee and Senate Republican leadership.

Sen. Ted Cruz (R-Texas), another Judiciary Committee member, agreed that “we continue to have positive conversations” with the White House but demurred on when new nominees would be announced.

Durbin raised as an example of bipartisan cooperation Darrel Papillion, a Baton Rouge lawyer who was confirmed to the Eastern District of Louisiana in a 59-31 vote last week. Papillion was backed by Louisiana GOP Sens. Bill Cassidy and John Kennedy.

“For it to happen you need two things,” Durbin said. “The will for members to move and put nominees on the bench, and, secondly, a person so qualified that both sides don’t feel they’ll be embarrassed by them.”

But Kennedy told Bloomberg that the White House “undid” an agreement with him and Cassidy on Louisiana’s three remaining judicial appointments.

“They were moving pretty quickly, and I thought we had reached an agreement, and last I heard the White House was unhappy with the agreement that we had,” Kennedy said in an interview. “I don’t know whether we’re back on square one or not.”

Spokespeople for the White House and Cassidy did not return requests for comment for this story.

Ending Blue Slips

Progressive groups have been concerned about the pace of nominations, which resulted in calls for Feinstein’s resignation as her extended recovery from shingles bottled up a handful of nominees Republicans opposed.

Progressive activists have called for Durbin to hold hearings and committee votes on nominees for whom GOP senators haven’t returned blue slip, a move supporters argue would end one of the remaining Senate traditions that promote bipartisan comity.

“Senator Durbin is giving all of the leverage to Republicans and not enough to the president” by honoring GOP senators’ blue slips, Kang said. “It’s going to create this situation where dozens of vacancies across the country remain not only open, but potentially without even having nominees for the Senate to consider.”

Durbin said “some” Republicans “want to be reasonable” and “keep the blue slip” as a dispositive tool in the judicial confirmation process.

“And I’m prevailing on that sentiment,” he said.