Why The Senate Must Confirm Every Biden Judge
If Senate Democrats don’t immediately get back to Washington, D.C. and confirm the 31 judicial nominees awaiting action either in the Senate Judiciary Committee or on the floor, then Donald Trump and the Republican Senate could confirm nearly 70, right-wing, unhinged federal judges by the summer of next year.
On Wednesday, the country awoke to the nightmarish news that Donald Trump won the 2024 presidential election and that Republicans took control of the United States Senate with at least a 52-seat majority. A possible 53rd seat is still too close to call. While partisan control of the United States House of Representatives is still uncertain, only the president and the Senate are involved in the important task of nominating and confirming lifetime federal judges. Given those judges are confirmed by a majority vote in the Senate, Republicans will now essentially have carte blanche to confirm every federal judicial vacancy that exists when they take power in January 2025 and all those that arise for at least the next two years.
This is especially concerning given what we know of the kinds of people who will likely be involved in picking judges for the Trump administration and what we know of the types of judges they want to confirm to the bench. The senators most likely to assume the role of Senate majority leader have already said that confirming Trump’s conservative judicial nominees will be a top priority for them. Long gone is the talk of “originalists” or “strict constitutionalists”; Republicans are now saying the quiet part out loud that they only want Trump loyalists like Judges Aileen Cannon and Matthew Kacsmaryk on the bench.
Earlier this week, for example, Bloomberg Law quoted Gregg Nunziata of the conservative group Society for the Rule of Law saying that Trump should focus on confirming “highly credentialed, very right-wing nominees who are committed to an agenda, not towards neutral judging.” So much for the rule of law!
During his first term in office, Trump appointed 234 lifetime federal judges to the bench, including three Supreme Court justices and 54 judges to the intermediate Courts of Appeals. That is roughly a quarter of the entire federal judiciary. We know from experience that Trump’s judicial nominees were rightwing extremists; they have issued rulings overturning Roe v Wade, limiting the rights of organized labor, restricting gun violence protection laws, curtailing the right to vote, undermining environmental laws and regulations, giving the president unprecedented immunity, and much more. The scary part is that Trump had even worse judicial nominees who didn’t make it through the Senate during his first term, including one who even called transgender children “proof of Satan’s plan on earth.” Those are the types of nominees we can look forward to in the coming years.
During his second term, Trump will be even less constrained by Republican moderates in the Senate — to the extent they exist at all anymore. Trump has taken broader control of the Republican party since his first term and he is already demonstrating that he will use his bully pulpit to reward loyalists and punish senators who don’t do exactly what he wants.
During the last Trump administration, Republicans changed several procedural rules to make it easier to confirm judges. By issuing calculated threats, Republicans bullied Democrats into supporting conservative nominees in their own states without even having to change rules like the blue slip. It would be naive to the level of professional misconduct to not understand that Republicans will change the rules again — if necessary — to make it as easy as possible for Trump to confirm judges loyal to him alone.
And here we get to the heart of the matter: A Trump administration combined with a Trump-loyalist Senate is a massive problem because there are a lot of judicial vacancies right now. There are 67 current and future judicial vacancies, or roughly 8% of the federal judiciary. That would be a significant number of judges for Trump to fill with judges loyal only to him right from day one.
But there is some good news. President Biden and his team have been busy at work these past few months making excellent nominations to many of these vacancies. There are currently 31 lifetime federal judicial nominees awaiting some action in the Senate Judiciary Committee or on the floor. Seventeen of those nominees are ready for votes as soon as the Senate returns on Tuesday, November 12. These are fantastic nominees and all of them are exceptionally well qualified for the seats they have been nominated to — despite Republican opposition to many of them for a whole host of manufactured reasons. Several of the nominees would be “firsts” who would break some of the courts’ many glass ceilings.
So why wouldn’t Senate Democrats rush to confirm these nominees? That is a great question. For the past year, Republican senators and their allies have levied every possible lie and slander against Biden’s exceptional and diverse judicial nominees. Generally, the more diverse the nominee, the more outlandish the slander was. But, given the current circumstances, those lies are irrelevant because we simply cannot let that noise cloud our decision-making. As we said, Trump will fill every single vacancy that Biden leaves with judges loyal only to him. So, a vote against a Biden nominee now — or Leader Schumer failing to schedule a vote — is effectively a vote for a loyalist Trump judge next year.
Other senators have stressed the lack of time left to confirm judges. But that response is, at best, a failure to prioritize this important task. During the Trump administration, Republicans changed the rules to make it easier to speed up the pace of judicial confirmations. There were several weeks when then-Leader McConnell confirmed six judges or more a week. If they wanted to play hard ball, Democrats could unilaterally change the rules just like Republicans did to make it easier to confirm judges in these final weeks. But they don’t even need to because they have plenty of floor time to give every single one of Biden’s pending judicial nominees a vote on the floor.
In short, Democrats need to get back to D.C., remember why they decided to serve, and take some votes. Every federal judge is an individual backstop for our freedoms and our democracy in the trying times that undoubtably lie ahead. As Senator Warren said in her Time op-ed this week, “Senate Majority Leader Chuck Schumer must use every minute of the end-of-year legislative session to confirm federal judges.” We emphatically agree. Stay in nights and weekends if needed (yes, the Senate has done this several times in the past). Skip Thanksgiving this year — for many of us the conversation will be terrible anyway. Whatever it takes, get these judges on the bench.
If the Senate gets to work this week and confirms even just 22 more of President Biden’s 31 pending nominees then Biden will have appointed more judges than any president since Carter, he will have appointed the most diverse judges of any president in history, and he will leave fewer judicial vacancies for Trump and the Republicans to fil with judges who will undoubtably work to undermine our rights. All 31 can easily be completed. The Senate must use the time and the power that it has to secure the future through our courts.
Jake Faleschini is the Justice Program Director at Alliance for Justice.