By Courtney Cohn,
Capital News Service
Senate Democrats raced against the clock to confirm federal judges at a historic rate before the midterm election. President Joe Biden has nominated and the Senate has confirmed 84 judges so far for district and circuit courts.
“(Senate Majority Leader) Chuck Schumer (D-New York) and I both share the belief that this is a priority in this Congress,” Sen. Dick Durbin, D-Illinois, chairman of the Senate Judiciary Committee, told Capital News Service.
Biden has appointed more nominees in his first two years in office than any president in history except for John F. Kennedy, who had appointed 102 judges at the same time in his presidency. Biden has outpaced former Presidents Donald Trump, Barack Obama, and George W. Bush, who nominated 51, 42, and 72 judges, respectively, at this time in their terms, according to the Pew Research Center.
“I think that the record number is fantastic, and it’s what we need for this country,” said Kimberly Humphrey, legal director for federal courts at the Alliance for Justice, a judicial advocacy group.
At the moment, there are 87 vacancies in the federal courts and 44 pending nominations, according to the Administrative Office of the U.S. Courts.
Facing numerous close midterm races, Democrats could lose their narrow majority in the Senate. In that case, they would need help from GOP colleagues to confirm any more Biden-nominated judges.
With the Supreme Court’s overturning of abortion rights in June’s ruling in Dobbs v. Jackson Women’s Health Organization a key issue in the midterms, Democrats are focused on moving as many judges through the Senate as possible, Humphrey said.
“I think judges have always, quite clearly, been a priority for the Republicans,” she said. “And I think we see that in terms of the historic flip in our laws with the Dobbs decision. That was not something that happened overnight. That was 50 years in the making.”
Many Americans are dissatisfied with the Supreme Court after the abortion ruling. According to the Pew Research Center, the Supreme Court’s approval rating is currently 48 percent, the lowest it has been in several decades.
Democrats also have had another motivation, Humphrey said: “The fact that former President Trump really was able to move a lot of appointees definitely made them want to be responsive or at least meet that pace.”
In total, Trump nominated three Supreme Court justices along with other 68 judges.
Biden has also made history with the diversity of his judicial nominations.
According to a recent White House tweet, 66 percent of the nominees were people of color and 68 percent were women.
In comparison, 12 percent of Trump’s judicial nominees were non-White and 29 percent were women, and 40 percent of Obama’s nominees were non-White and 50 percent were women, according to the Pew Research Center.
“We’re making our courts fairer and more representative of our great nation,” Chuck Schumer said last month on the Senate Floor.
Biden has also prioritized professional diversity, nominating judges with a variety of backgrounds.
“I share President Biden’s goal of having a diverse federal judiciary that brings experience from the broader legal community to the bench, including public defenders and civil rights lawyers,” said Sen. Chris Van Hollen, D-Maryland. “Maryland’s nominees embody that commitment.”
Last spring, Biden nominated Deborah Boardman and Lydia Griggsby for the U.S. District Court for the District of Maryland. Before serving as judges, Boardman served as a public defender and Griggsby served as an attorney in the Justice Department’s Civil Division.
Supreme Court Justice Ketanji Brown Jackson, who was sworn in June 30, broke two barriers.
“It has taken 232 years and 115 prior appointments for a Black woman to be selected to serve on the Supreme Court of the United States, but we’ve made it. We’ve made it – all of us,” Jackson said in a speech in April shortly after her Senate confirmation.
Jackson is also the first Supreme Court justice who served as a criminal public defender.
Humphrey believes professional diversity is important because it means “our federal system reflects the interests of all people, not just corporations.”
However, Thomas Jipping, a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies, which is part of the Institute for Constitutional Government at the conservative Heritage Foundation, said that if the diversity of Biden’s nominees dominates messaging, it could negatively impact public perceptions of the court.
“This push for racial, sexual, and professional diversity leads to the perception that judges’ characteristics drive their decisions,” Jipping said. “It really destroys the trust that we extract from the public in terms of judicial impartiality.”
While Biden has gotten many judicial nominees confirmed, he has gotten very few Republican votes. Republican Sens. Lindsey Graham of South Carolina, Lisa Murkowski of Alaska, and Susan Collins of Maine have broken most often with GOP colleagues to confirm Biden picks.
“The current partisan divide is very clear from the data,” said Jipping. “I don’t think that’s a good thing.”
Iowa Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, said he opposed many of Biden’s nominees because he believes they are unqualified and did not perform well during the confirmation hearings.
“This committee has voted to approve nominees that can’t answer basic questions,” Grassley said on Sep. 29. “Rubber stamping nominees without requiring answers is an abdication of our responsibility.”
Judges are an issue politicians and many voters are passionate about because federal judges serve for life.
“These judges and all of their rulings are going to impact our society for generations to come,” Humphrey said.
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