The first vote the lame-duck Senate will take as it returns Tuesday will be on a nominee for a Chicago federal court, kicking off Democrats’ uphill campaign to confirm as many of President Joe Biden’s picks for the judiciary as possible before losing power at the end of next month.
By the time Biden leaves office, he will not be able to fully counter the makeover of the Supreme Court and of federal appeals courts that President-elect Donald Trump achieved during his first term. He could, however, come close to or even eclipse Trump’s numbers on district judges who will be the first line of defense in the legal battles over Trump’s agenda in the next four years.
There are 17 judicial nominees who have already been advanced by the Senate Judiciary Committee and are ready for a floor vote.
Trump’s return to the White House will only increase the influence he’s had on the federal bench, so every judge confirmed in the lame-duck session will be one less vacancy that he can fill.
But holding the White House and Senate majority for another few weeks doesn’t guarantee Democrats will have an easy time processing the final batch of Biden appointees. Many of the pending nominees have been ready for floor votes for months due to unified GOP opposition. And Trump has called on Republicans to blockade the remaining Biden picks, meaning that the White House could need all of the Democratic votes they can get, including from members who are retiring or were defeated last week.
“There is a push across the board from the White House and the Senate for Democrats to show up and do the job they were elected to do,” a senior White House official, asking for anonymity to speak candidly, told CNN.
A symbol of the Democratic worry is the renewed concerns that Republicans can flip another seat on the 6-3 Supreme Court because Justice Sonia Sotomayor, who is 70, did not step down when Biden and Senate Democrats would have been well-poised to replace her.
Sotomayor has indicated to colleagues that she has no plans to step down this year, and Democrats were not planning on launching a concerted effort to convince her to retire in the lame duck, a maneuver that would have created its own risks.
While there may have been some outside talk of that in the election’s immediate aftermath, Democratic Vermont Sen. Peter Welch, who sits on the Senate Judiciary Committee, called that “fantasy football discussions.”
Maggie Jo Buchanan, the managing director of Demand Justice, which advocates for progressive judicial nominations, told CNN that the emphasis is on lower court judges, as she called on Democratic Senate leadership to work through the remaining weekends if need be.
“We are firmly focused on the nominees that we know and pushing the Senate to do whatever is possible to get them off the finish line,” Buchanan said.
The White House official pointed to how Republican Texas Sen. John Cornyn on Saturday promised “no weekends, no breaks” to confirm Trump’s Cabinet once he took power, and the White House official encouraged Democrats to show that dedication to judges in Biden’s final stretch.
“I hope we are going to see some later nights,” the official said, suggesting Senate leaders rethink the usual 6 p.m. end time for their workdays. “On a day you would normally process two nominees, why not process three?”
A final sprint after 213 judges confirmed
The Democratic judicial push has confirmed 213 Biden nominees to the federal bench so far and has broken records in terms of racial and professional diversity, even if Biden is still short of the 234 judges Trump put on the bench in his first term.
Democrats are vowing to close out strong. “From what I understand, it’s going to be a robust few weeks,” said New Jersey Sen. George Helmy.
In order to get as many possible nominees confirmed, Senate leaders will need floor time, Republican absences and a willingness from Democrats to stand firm behind nominees that have been targeted with vigorous GOP opposition. Democrats will also have to juggle confirmation effort with the work that will need to be done to pass a spending bill to avert a government shutdown and the annual defense policy bill in December.
If Republicans are united against a nominee, the defection of just two Democratic-aligned senators would be the end of the road. West Virginia Sen. Joe Manchin, an independent, has also warned previously he will not advance any nominees that only have one party’s support.
For some of the most controversial of Biden’s picks for the federal bench, Democrats have successfully brought the nominees up for floor votes when enough Republicans were absent. Hope remains among liberals that the attendance stars align again in the lame duck so that long-stalled nominees, like 3rd Circuit nominee Adeel Mangi, can finally be confirmed.
If confirmed, Mangi would be the first Muslim judge on any US federal appeals court.
Even nominees that aren’t controversial on the merits could struggle to get Republican support post-election, said Carl Tobias, a University of Richmond School of Law professor who closely tracks the nomination process.
“Some Republicans could be emboldened by their victories in the presidency and pick up of the Senate,” Tobias said.
Trump is counting on that, urging GOP senators not to allow any nominations to be filled with Biden appointees.
“No Judges should be approved during this period of time,” Trump said in a social media post this weekend.
Senate Republicans, meanwhile, confirmed 14 Trump judicial nominees in the lame-duck period after his 2020 electoral defeat but while the GOP controlled the upper chamber.
“Regardless of party, the American people expect their leaders to prioritize the rule of law and ensuring the criminal justice system can function effectively in every stated,” said White House spokesperson Andrew Bates. “Delaying the confirmation of strongly qualified, experienced judges takes a real-life toll on constituents and leads to backlogs of criminal cases.”
In his first term, Trump inherited more than 100 openings on the federal bench, benefitting from a Senate that was under GOP control during the last two years of President Barack Obama’s term. That won’t be the case when Trump returns to Washington in January. There are 47 current openings – many of them in for district court seats where Republican home state senators and the White House could not reach agreement on a nominee – and Democrats have 17 nominees ready to fill them pending on the floor. There are around nine – depending on what the calendar will allow – other Biden nominees who could still come through committee.
“Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame duck session given that we have a number of nominees on the floor ready for a vote,” said a spokesperson for Senate Judiciary Committee Chairman Dick Durbin of Illinois.
‘Urgency now more than ever’
All told, Biden has five nominees queued up for the influential federal appeals court spots, where Trump was able to make a major impact, and four of them are ready for floor votes.
In addition to Mangi, Biden nominees for the First and Sixth Circuits – Julia Lipez and Karla Campbell, respectively – could face a tough road on the floor after every Republican on the Judiciary Committee voted against them there.
As for the district courts, other nominees also faced party-line opposition in committee, so their approval on the floor will likely depend on attendance and the possibility that Senate Republican moderates like Sens. Susan Collins or Lisa Murkowski cross over to help Democrats.
In the wake of the election, Democrats may also be more suspect about voting to advance nominees that they have concerns or questions about.
Even before the election, one of Biden’s nominees, Magistrate Judge Sarah Netburn, who has been selected for Manhattan’s federal trial court, attracted the opposition of Georgia Democratic Sen. Jon Ossoff, blocking her path out of committee.
But other Democrats on the committee argue that the reality of a Trump administration could also work to motivate colleagues to move expeditiously to fill the courts.
“I think there is a sense of urgency now more than ever,” Sen. Richard Blumenthal, a Democrat from Connecticut, told CNN.
CNN’s Morgan Rimmer contributed to this report.
