Two years into his presidency, Joe Biden has already broken records for the number of federal judges he has confirmed and the diversity of his court decisions. And as Democrats prepare to control the Senate for another two years, Biden is on track to make his influence on the courts a defining part of his legacy.
It will only get easier for him if the Democrats win the Georgia Senate runoff on December 6.
The Senate has been 50-50 along party lines for the entire time that Biden has been President. That means Democrats and Republicans have had equal representation on the Judiciary Committee, where GOP members have deliberately delayed the confirmation process for a number of Biden’s court decisions.
All those GOP members have to do is vote unanimously no to a candidate, resulting in a tie within the committee, and it keeps that candidate there. Whenever they do so, Senate Majority Leader Chuck Schumer (DN.Y.) must file what is known as a relief motion to force that nominee out of committee and into the Senate for a confirmation vote.
Each dismissal motion adds four hours to the waiting time in the Senate. That’s on top of the delays that go along with filing a petition in the first place. So far, Republicans have forced Schumer to file a dismissal motion for five of Biden’s court picks, which were later confirmed. Among them: Supreme Court Justice Ketanji Brown Jackson.
There are currently four other judge candidates — two appellate courts and two circuit courts — who are still stuck in the Judiciary Committee and need motions to get out.
The Democrats should already 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 in committees, no more partisan votes in the Judiciary Committee and no more motions for discharge.
“Georgia is very important because if we don’t have to deal with all the procedural hurdles that come with a bound Senate, we can confirm even more judges faster,” said Brian Fallon of Demand Justice, a progressive justice advocacy group.
Additionally, Fallon said, with 51 Democrats in the Senate, Biden would have a stronger position to fill potential Supreme Court seats.
“Should there be any vacancies in the High Court in the next two years, Biden will be in the driver’s seat,” he said. “It will be the opposite of what happened in 2014, when losing the Senate cost Democrats a chance to change the composition of the court for a generation afterward [conservative Justice Antonin] Scalia has died.”
A 51-49 majority would also give Democrats some breathing room to confirm judges in the event that a single senator is ill or otherwise absent. Earlier this year, for example, Democrats were unable to confirm judges for an entire term while Senator Patrick Leahy (D-Vt.) had hip surgery.
Warnock and Walker turned heads in the polls ahead of Election Day on November 8th. A poll released on Tuesday showed Warnock going into the runoff with a slight margin.
Democrats could have a hard time confirming judges in the next few weeks as Warnock likely has until December 6 to run in Georgia. The Senate is currently scheduled to return on Monday.
Carl Tobias, a law professor at the University of Richmond and an expert on court nominations, said Schumer would be wise to immediately create votes for nominees who have at least some GOP support.
“Democrats can avoid close voting by moving candidates who have bipartisan support, like the five appellate candidates who are on the floor and most of the 15 circuit court candidates who are on the floor,” Tobias said.
As of this week, Biden has confirmed 85 judges to lifetime seats in federal courts, equaling more than decades of his predecessors. At this point in her presidency, Donald Trump had confirmed 84, Barack Obama had 43, George W. Bush had 80, George HW Bush had 71, and Ronald Reagan had 83. Former President Bill Clinton was the only one to surpass Biden at that point , with 143 confirmed judges.
Biden has also made a promise to diversify the Bundesbank and break with the typical practice of tapping white male corporate attorneys for judicial positions. His picks included public defenders, voting rights attorneys and union organizers, in addition to historic firsts featuring Native Americans, black women, LGBTQ candidates and Muslim Americans.
“He is proud to have delivered on the promises he made to the country regarding judges, including placing the first black woman on the Supreme Court, nominating more black women for appeals courts than all of his predecessors combined, thereby Latino and AAPI have increased significantly [Asian American and Pacific Islander] diversity and making a majority of its nominees women,” said White House spokesman Andrew Bates.
“He looks forward to continuing this important work with the renewed Democratic majority in the Senate.”