Manchin for First Time Bucks Biden Judge, Narrowing Nominee Path

Sen. Joe Manchin for the first time cast votes against one of President Joe Biden’s judicial nominees, complicating the White House’s push to fill the federal bench with more liberal lifetime appointees.

Manchin (D-W.Va.) on Thursday joined Republicans in opposing voting rights lawyer Nancy Abudu’s confirmation to sit on the US Court of Appeals for the 11th Circuit.

A Manchin spokesperson said it was important that the Senate avoid confirming “partisan advocates” to federal courts, especially at the appellate level, at a time Americans have lost faith in the courts. The Senate, however, still confirmed Abudu without the need to have Vice President Kamala Harris break a tie because of the absence of three GOP senators.

Manchin’s defection represents yet another sobering reality for Senate Democrats and the White House. While the party has a slightly larger Senate majority than in the last Congress, some of members up for re-election in 2024 in competitive states may be looking for opportunities to show distance from the White House, which could set up more obstacles for Biden’s picks.

Sen. Joe Manchin (D-W.Va.) for the first time opposed Biden judicial pick.

Photographer: Tom Brenner/Bloomberg

Sen. Dick Durbin (D-Ill.), the majority whip and chairman of the Senate Judiciary Committee, said he was “of course” concerned about getting enough votes to confirm judicial nominees as the 2024 election approaches.

“51-49 Senate, I’m concerned about every roll call,” Durbin said.

Manchin is a frequent swing vote in the Senate and has increasingly bucked his party since Democrats gained a seat in the previously evenly-divided Senate as he ponder his next political move in 2024. His willingness to break from his party has also applied to legislation. He often has pressed Democratic leaders for concessions on major bills, including the 2022 Inflation Reduction Act, to gain his support.

Manchin is up for re-election in West Virginia, which voted for former President Donald Trump by 39 points in 2020. Manchin has not said whether he would run for another term and help Democrats hold one of their most vulnerable seats as he has toyed publicly with the idea of running for president instead.

Manchin’s no vote was the first time any Democrat has opposed one of Biden’s judicial nominees on the floor. Many of them even enjoy bipartisan support, with Sens. Lindsey Graham (R-S.C.), Susan Collins (R-Maine), and Lisa Murkowski (R-Alaska) frequently supporting his judicial picks.

Nominees who could race particularly tight confirmation votes include Julie Rikelman for the First Circuit, Rachel Bloomekatz for the Sixth Circuit, Kato Crews for the District of Colorado, and Charnelle Bjelkengren for the Eastern District of Washington.

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‘Shirts and Skins’

Senate Minority Whip John Thune (R-S.D.) in an interview said it has been tough to convince Democrats to defect on judicial nominees that party leadership see as “a litmus test.”

“It tends to be a shirts and skins exercise,” Thune said.

But that may wane as the election season approaches. Judicial nomination votes make up an outsized portion of floor votes and factor into calculations of the frequency with which a senator votes with their party, a score that’s frequently featured in negative campaign ads.

“There of course is some amount of political incentive for some of our red-state senators who want to put some distance between them and the White House, to find those areas where it makes sense to get that percentage down a little bit,” said John LaBombard, a senior vice president at Rokk Solutions and former communications director to Sen. Kyrsten Sinema (I-Ariz.).

Democrats didn’t need Manchin’s vote to advance her nomination. Even after he voted Wednesday with Republicans to filibuster her nomination, floor staff kept the vote open for more than two hours so Sens. Bob Menendez (D-N.J.) and Chris Coons (D-Del.) could cast decisive votes to move her into a position for final confirmation.

Senate Majority Leader Chuck Schumer (D-N.Y.) prioritized Abudu’s confirmation shortly after Sens. Dianne Feinstein (D-Calif.) and John Fetterman (D-Pa.) returned from extended absences as each recovered from their respective health challenges.

Schumer in a floor speech on Wednesday applauded Abudu’s advocacy for voting rights and celebrated that Abudu would be the first Black woman to serve on the 11th Circuit, which covers Alabama, Florida, and Georgia.

“Ms. Abudu is an embodiment of the American Dream, and she has dedicated her career to ensuring that dream is alive and well for everyone in this country,” Schumer said.

But Republicans balked at her nomination, depriving her of the requisite support on the floor as long as Feinstein and Fetterman were out. She has waited for a floor vote since early February, when Democrats on the the Judiciary Committee approved her nomination.

“She’s somebody who should have overwhelming support in the Senate,” said Molly Coleman, executive director of the progressive People’s Parity Project. “And the fact that it’s getting to this point where we’re counting votes, where the president’s party is losing support, it’s incredibly disappointing.”

Senate Minority Leader Mitch McConnell (R-Ky.) in a floor speech Wednesday dismissed Abudu as a “an antipolice activist” with a record at strategic litigation director at the Southern Poverty Law Center that “falls far, far outside the mainstream.”

“After a year and a half of considerations, I hope our colleagues will recognize that this nominee is unfit for judicial service and reject her nomination,” McConnell said before the vote.