WASHINGTON – With no Supreme Court opening to slow them, President Joe Biden and Senate Democrats are putting judges on federal trial and appellate courts at a much faster clip than any of Biden’s recent predecessors, including former President Donald Trump.
Eight judges already have been confirmed, including potential Supreme Court pick Ketanji Brown Jackson to the federal appeals court in Washington. More than 30 other judicial nominations are pending for more than 100 openings.
By this time four years ago, the Senate, then under Republican control, had confirmed four Trump nominees, including Justice Neil Gorsuch.
But in 1993 and 2009, the start of the last two Democratic administrations, no judges had been confirmed by the end of July.
The last two Democratic presidents, Bill Clinton and Barack Obama, were slow to move judicial nominations. But they both had early, time-consuming Supreme Court vacancies to deal with.
Justice Byron White announced his retirement two months after Clinton’s inauguration in 1993. Justice David Souter told Obama he would step down just over three months after Obama took office in 2009.
Progressives pushed hard for Justice Stephen Breyer to retire this summer, but the 82-year-old leader of the court’s diminished liberal wing has given every indication he will be on the bench when the court starts its new term in October.
Those encouraging Breyer to step down haven’t masked their disappointment, but they are happy with the nominees Biden has put forward so far — more diverse racially, by gender and legal experience than were Trump’s picks, who were overwhelmingly white and male.
They include public defenders, civil rights lawyers and attorneys for organized labor, along with the more typical mix of prosecutors and big law firm members.
“I don't see any silver lining to Breyer staying on the court," said Nan Aron, the outgoing president of the liberal Alliance for Justice. She worries that an illness or death could take away the Democrats' precarious majority in the Senate and that Senate Republican leader Mitch McConnell could reprise his refusal to confirm a Democratic nominee, just as he did when Justice Antonin Scalia died in 2016 and Obama nominated Merrick Garland, now the attorney general, to the Supreme Court.
But Aron said, "We’re so pleased with both the pace and high quality of the Biden nominees, particularly that so many come from all corners of the legal profession ... It’s a wonderful departure from previous Democratic administrations.”
Among his appointments are Tiffany Cunningham, the first Black woman to serve on the court of appeals in Washington, D.C., that deals with patent and other specialized cases and Candace Jackson-Akiwumi, only the second Black woman to be a judge on the federal appeals court based in Chicago.
Biden also has nominated civil rights attorney Myrna Perez for the federal appeals court based in New York. She would be the first Latina on that court since Justice Sonia Sotomayor moved up to the Supreme Court.
“We have had a good selection of nominees come forward,” said Sen. Dick Durbin, D-Ill., the Senate Judiciary Committee chairman.
One additional benefit of Biden's focus on diversity is it might tamp down the restiveness of progressives who also are advocating for court reforms, including expanding the Supreme Court by four justices to counterbalance the three Trump appointees.
“It could mollify his progressive base, who realize he is not going to go in for expanding the size of the court or even term limits,” said Russell Wheeler, a Brookings Institution expert on the judiciary.
Biden's nominees all have drawn at least some Republican support in the Senate. Sens. Lindsey Graham, R-S.C., and Susan Collins, R-Maine, have voted for all eight judges who have been confirmed.
Another 15 Republicans have not voted for any Biden judicial nominees.
Some of the opposition could be a form of payback for Democratic opposition to Trump nominees, said Carrie Severino, whose conservative Judicial Crisis Network has spent millions of dollars supporting Republican nominees and opposing Democrats.
“Many Republican senators believe that returning to a universe where Democrat nominees are just reflexively confirmed would constitute unilateral disarmament in light of the unyielding opposition to President Trump’s nominees for four years,” Severino said, singling out Vice President Kamala Harris for her votes against Trump court picks when she served as a senator from California.
Trump may have started slowly, but his record of putting more than 230 judges on the federal bench is an undisputed success of his four years as president.
Trump's record and the slow starts by Clinton and Obama were not lost on Biden and his team. Even before Biden became president, incoming White House counsel Dana Remus urged Senate Democrats to submit names of judicial candidates. The Democrats' tenuous hold on the Senate has only added to their need to move quickly, no matter Breyer's plans.
“To be clear, when we came into this, it was with no regard to anything that might happen on the Supreme Court. It was like, let’s move,” said Paige Herwig, a lawyer in the White House counsel's office who focuses on judicial nominations.
A veteran of the Obama White House, Herwig said that “a lot of people learned the lesson that if you don’t think about judges out of the gate, there’s so much else going on at the beginning of an administration, it can be very easy to have things slip through the cracks.”
Durbin said that if Breyer retires while he's the committee chairman, the pace of confirmations won't slow. “We’re prepared for it,” he said.