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Midterms Pressure Senate, Biden on Appellate Appointments (1)

June 29, 2022, 8:45 AMUpdated: June 29, 2022, 9:09 PM

Democrats risk running out of time before filling all current or expected federal appeals court vacancies with their grip on the Senate in doubt, legal scholars who follow judicial nominations say.

Progressives want the White House and Senate Democrats to move faster. The usual summer congressional slowdown and November midterm campaigning leaves limited time for committee and floor action before a lame-duck session to end the year.

Senate Democrats, who have confirmed 16 circuit nominees in the first year and a half of Joe Biden’s presidency, are aiming to nearly double the tally in the next six months.

But filling all available vacancies is unlikely without changes to how the majority manages vetting, said John Collins, a George Washington University professor who tracks judicial nominations. “I just don’t think there’s enough time,” Collins said.

The hazard for Biden is that a Republican-controlled Senate would confirm few, if any, of his appellate nominees during the final two years of his first term. The 13 circuit courts are the last word on virtually all federal appeals.

The new Congress starts next Jan. 3 and the fight for the Senate is competitive. Democrats control the chamber only because Kamala Harris can break tie votes as vice president.

A White House official said the administration plans to continue moving quickly to fill every vacancy. A Senate Judiciary Committee Democratic aide, who requested anonymity to speak candidly, expects Biden’s two-year total for circuit confirmations to top 30 at least. That would also tie Biden with Donald Trump for most circuit confirmations in two years.

There are 15 circuit nominees in the pipeline and 10 current or expected vacancies without a pending nominee.

Biden added to the list of circuit picks awaiting action on Wednesday by announcing his intent to nominate Tamika Montgomery-Reeves to the US Court of Appeals for the Third Circuit.

Circuit Forecast

Biden had a handful of circuit seats available when he took office in January 2021, and he and Senate Democrats moved efficiently in his first year in office to fill them.

But the nomination and confirmation of Ketanji Brown Jackson to the Supreme Court earlier this year took priority. Only two appellate nominees have been confirmed in the past four months.

“At a bare minimum, they’ve got to fill all of the circuit court seats, and that’s not sort of how they’re tracking,” said Rakim Brooks, president of the Alliance for Justice, a progressive judicial advocacy group.

Brooks said Senate Democrats should consider setting aside “some of the traditions around” judicial confirmations, including how many nominees the committee considers at once.

Instead of two circuit and three district nominees at confirmation hearings, Brooks suggested holding them with nominees who are highest priorities for the administration. The Judiciary Committee aide declined to address that suggestion but said the panel plans to continue with two circuit nominees at hearings held every two weeks when the Senate is in session.

“I don’t think there’s any reason for us to change the way we’re operating. The key now is for (Chuck) Schumer to find the floor time,” the aide said of the New York Democrat who serves as majority leader.

On June 22, the committee continued moving circuit nominees by holding a confirmation hearing for Florence Pan for the D.C. Circuit, and Rachel Bloomekatz for the Sixth Circuit.

The committee appears to have four or five more hearing days left between now and mid-October, assuming it continues holding them every two weeks and the chamber sticks to its planned recess schedule.

Shrinking Calendar

The Senate began a two-week recess June 27, and will return for about a month before leaving again through Labor Day. The Senate will be in session for most of September and for two weeks in October in the run-up to Election Day when 35 seats are on the ballot.

That means opportunities for eight to 10 more circuit nominees to testify before the committee, advance to the floor, and receive the customary two votes necessary for confirmation. Some need three depending on whether the committee deadlocks on their nomination.

If the nominees already announced or sent to the Senate are confirmed and the White House picks candidates to fill the remaining hearing slots, it would still leave five to seven circuit seats on the table when the year runs out.

Russell Wheeler, a visiting fellow at the Brookings Institution who tracks nominations, said that the president’s “not going to get as many” between now and January than he’s gotten so far.

“I don’t see how that’s going to happen,” Wheeler said.

GOP Control

Predictions that a Republican-led Senate would stonewall nominations stem from the GOP-controlled Senate’s reluctance to confirm Barack Obama’s judicial nominees during the last two years of his administration.

Although the Republican blockade of Supreme Court nominee Merrick Garland made headlines, the chamber confirmed just two of Obama’s circuit nominees in 2015 and 2016—fewer than his predecessors had over the same period.

Sen. Chuck Grassley (R-Iowa), who would be Senate Judiciary Chair in a GOP-led Senate next year, said he didn’t want to speculate about how Republicans would treat Biden judicial nominees if Republicans regained control of the chamber.

But prior to the Judiciary Committee vote on Jackson’s Supreme Court nomination, Sen. Lindsey Graham (R-S.C.) underscored that lawmakers would “talk about judges differently” in a Republican-led Senate.

Moderate Shift

The White House appears to be employing a strategy recently of circuit picks that may be seen as more moderate or easier to get through with some Republican support, those watching nominations said.

“At this point, you could make the case or argue that they’re trying to be a little bit more moderate and attempt to maybe not ruffle as many feathers on the committee as possible,” Collins said.

Biden has so far prioritized both demographic and professional diversity in his judicial nominations, adding judges to the federal bench with backgrounds as public defenders or civil rights attorneys.

Bradley Garcia, Biden’s most recent nominee to the D.C. Circuit who would make history as the court’s first Latino, fits a more traditional mold for judicial nominees in terms of professional experience. He’s a Justice Department lawyer and former Big Law partner.

Garcia and fellow D.C. Circuit nominee Pan also clerked for prominent conservative judges in their legal careers. Garcia clerked for Supreme Court Justice Elena Kagan.

Several other recent circuit picks, such as Pan, would be elevated from district courts, which may make the confirmation process faster as they have already been through it. Elevations to the circuit court create district court vacancies, however, which some progressives say is a risky move.

Democrats voting together can confirm any Biden judicial nominee without Republican support, but GOP opposition in committee can slow the process if the evenly split panel deadlocks on sending the nomination to the full Senate.

Senate Priorities

“The biggest issue really is the fact that at this point, a lot of it is out of Biden’s hands,” said Amy Steigerwalt, a political science professor at Georgia State University who studies judicial selection.

Once Biden has made nominations, his role in the process is done, Steigerwalt said. What happens to those nominations next is under Senate control, which is also facing other policy priorities as midterms constrain the calendar.

“They’ve got to make these determinations and these calculations of what matters more,” Steigerwalt said.

(Updates to reflect nomination of Montgomery-Reeves to the Third Circuit.)

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