Two years into his presidency, Joe Biden has already broken records with the number of federal judges he’s gotten confirmed and with the diversity of his court picks. And as Democrats prepare to control the Senate for another two years, Biden is on track to make his impact on the courts a defining piece of his legacy.
It’s only going to get easier for him if Democrats win in Georgia’s Senate runoff on Dec. 6.
The Senate has been tied at 50-50, along party lines, for the entire time that Biden has been president. That’s meant that Democrats and Republicans have had equal representation on the Judiciary Committee, where GOP members have been intentionally delaying the confirmation process for a number of Biden’s court picks.
All those GOP members have to do is unanimously vote no on a nominee, causing a tie within the committee, and it keeps that nominee stuck there. Whenever they do this, Senate Majority Leader Chuck Schumer (DN.Y.) has to file a so-called discharge petition to force that nominee out of the committee and onto the Senate floor for a confirmation vote.
Every discharge petition adds four hours of waiting time on the Senate floor. That’s on top of the delays that come with filing a petition at all. To date, Republicans have forced Schumer to use a discharge petition for five of Biden’s court picks who went on to be confirmed. Among them: Supreme Court Justice Ketanji Brown Jackson.
There are currently four other judicial nominees — two appeals court picks and two district court picks — who are still stuck in the Judiciary Committee and need discharge petitions to get out.
Democrats are already set to have 50 seats in the new Senate. If Sen. Raphael Warnock (D-Ga.) defeats his GOP challenger, Herschel Walker, in the coming weeks, Democrats will have 51 seats. That would mean no more power sharing on committees, no more votes tied along party lines in the Judiciary Committee and no more discharge petitions.
“Georgia is highly important because we can confirm even more judges, more quickly, if we don’t have to deal with all the procedural hurdles that come with a tied Senate,” said Brian Fallon of Demand Justice, a progressive judicial advocacy group.
Beyond that, said Fallon, having 51 Democrats in the Senate would put Biden in a stronger position for filling potential seats on the Supreme Court.
“If any vacancies on the high court happen to arise in the next two years, Biden will be in the driver’s seat,” he said. “It will be the opposite of the situation in 2014, when the loss of the Senate costs Democrats a chance to change the court’s composition for a generation after [conservative Justice Antonin] Scalia died.”
A 51-49 majority would also just give Democrats some breathing room for confirming judges, in the event that a single senator is out sick or otherwise absent. Earlier this year, for example, Democrats were not able to confirm any judges during an entire work period while Sen. Patrick Leahy (D-Vt.) was out having hip surgery.
Warnock and Walker flip-flopped in the polls leading up to Election Day on Nov. 8. A poll released Tuesday showed Warnock with a slight lead heading into the runoff.
Democrats may have a hard time confirming judges over the next couple of weeks since Warnock will likely be campaigning in Georgia through Dec. 6. The Senate is currently scheduled to return Monday.
Carl Tobias, a law professor at the University of Richmond and a judicial nominations expert, said Schumer would be smart to immediately line up votes on nominees who have at least some GOP backing.
“Democrats can avoid close votes by moving nominees who have bipartisan support, like the five appellate nominees who are on the floor and most of the 15 district court nominees on the floor,” said Tobias.
As of this week, Biden has confirmed 85 judges to lifetime federal court seats, which is more than decades of his predecessors. By this point in their presidencies, Donald Trump had confirmed 84, Barack Obama had 43, George W. Bush had 80, George HW Bush had 71 and Ronald Reagan 83. Former President Bill Clinton is the only one who had surpassed Biden by this point , with 143 confirmed judges.
Biden has also followed through with a vow to diversify the federal bench, breaking from the typical practice of tapping white, male corporate lawyers for judgeships. His picks have included public defenders, voting rights lawyers and union organizers, in addition to historic firsts with Native Americans, Black women, LGBTQ nominees and Muslim Americans.
“He is proud to have honored the promises he made to the country with respect to judges, including placing the first Black woman on the Supreme Court, nominating more Black women to appeals courts than all his predecessors combined, significantly increasing Latino and AAPI [Asian American and Pacific Islander] diversity, and making a majority of his nominees women,” said White House spokesman Andrew Bates.
“He looks forward to continuing this important work with the renewed Democratic majority in the Senate.”