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Dozens of Biden Judicial Nominations Returning to White House

Dec. 23, 2022, 9:45 AM

Dozens of Biden judicial nominees, some of whom have waited a year or more for a confirmation vote, are returning to the White House for reconsideration with Senate action on those appointments done for the year.

The Senate’s heading out of town until January when a new Congress convenes. It’s customary for holdovers to promptly be renominated, but there are sometimes exceptions.

“It’ll be interesting to see if anybody is not renominated, and then how quickly they start moving on several nominees who have been held up for a while,” said John Collins, a law professor at George Washington University.

The narrowest of Senate majorities for Democrats over the past two years didn’t allow for them to push through judges at a faster clip, even though Biden has made 97 appointments to lifetime federal judgeships so far. That includes Ketanji Brown Jackson to the Supreme Court. Hallmarks of Biden’s judicial appointments have been demographic and professional diversity.

“For the first time, we have a bunch of public defenders, immigration lawyers, consumer people. So it’s not just the corporate perspective or the prosecutorial perspective that’s on the bench,” Senate Majority Leader Chuck Schumer (D-N.Y.) said Thursday with the chamber wrapping up business.

Long Wait

The nine outstanding circuit and 36 district nominees include candidates lauded by progressives, such as ACLU voting rights attorney Dale Ho and Julie Rikelman, who represented the Mississippi abortion clinic in the Supreme Court case that overturned a constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization.

Rikelman was nominated to the First Circuit last August, and a five-month wait is not uncommon. But Ho was nominated to the Southern District of New York in September 2021 and is among a handful idling for a year or more for a confirmation vote.

Biden also added to the list of planned nominees the Senate will consider in the new year on Wednesday with a slate of six district nominees for courts in Indiana, New Jersey, and California. Those and expected renominations will give Biden and Senate Democrats, who now have a boosted majority in the chamber beginning in 2023, the ability to hit the ground running on judges.

In Limbo

The future for some holdover nominees, however, is unclear.

William Pocan’s nomination to the US District Court for the Eastern District of Wisconsin stalled after after Republican Sen. Ron Johnson said he would oppose him. Democrats have so far required home-state senator support for district court nominees, and Pocan’s nomination hasn’t moved forward since February.

Jorge Alberto Rodriguez, nominated to the Northern District of New York, is also in limbo after the judge he was nominated to replace, David Hurd, rescinded his plans to vacate his seat. Hurd told Biden he wouldn’t be leaving in a letter sent the day after the White House announced Rodriguez would be the nominee. There are currently no future or current vacancies on that court.

Several nominees who deadlocked in the Senate Judiciary Committee, which was evenly split between Republicans and Democrats, would likely to face an easier time advancing now that Democrats have more breathing room. Tie votes in committee require a third floor vote in the confirmation process.

When judicial candidates are renominated, they return to the Judiciary Committee where they’re often considered without an additional hearing. Those who previously deadlocked will likely advance along new party lines. Committee membership hasn’t yet been determined but Democrats are expected to have at least a one-seat edge.

“I would think they’ll probably move to the top of the confirmation list,” Collins said of previously deadlocked nominees.

Those nominees include Ho, Rikelman, Sixth Circuit nominee Rachel Bloomekatz, and Eleventh Circuit nominee Nancy Abudu.

—With assistance from Zach Cohen

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com