Home U.S. News As Biden Judicial Confirmations Slow, Senate Gains Ground on Red-State Judges

As Biden Judicial Confirmations Slow, Senate Gains Ground on Red-State Judges

As Biden Judicial Confirmations Slow, Senate Gains Ground on Red-State Judges

President Biden and Senate Democrats have fallen behind the rapid pace set by Republicans in shaping the federal courts during the Trump era, but they have made fresh headway in advancing judicial nominees in states represented by Republicans.

By negotiating with Republicans over judicial picks, Mr. Biden and majority Democrats have been able to exert some influence over the makeup of trial courts in red states and install people of color on the bench for the first time in some regions.

“It has worked because I think I have convinced the White House that it is better to get a moderate Republican today than a MAGA Republican tomorrow,” said Senator Richard J. Durbin, the Illinois Democrat who chairs the Judiciary Committee.

Still, the Senate would need to confirm at least 63 more judges this year to match or better the record of the Trump years, when Senator Mitch McConnell, the Kentucky Republican who was then the majority leader, pushed through 234 conservative-leaning jurists, including three to the Supreme Court.

After a fast start that initially surpassed the pace set under former President Donald J. Trump, the rate of Biden confirmations tapered off last year, leaving the current total for the administration at 171. That likely put the Trump administration threshold out of reach for Mr. Biden and Democrats in an election year when the Senate will be gone from the Capitol for long stretches. Mr. Durbin has said his goal is to confirm at least 200.

One development working in Democrats’ favor is that the Senate has begun adding to the bench in red states after earlier Republican resistance. In the past week, the Senate confirmed two district court judges for Indiana and one in South Carolina, while the Judiciary Committee held confirmation hearings for nominees for seats in Nebraska, Utah and Wyoming, and two seats in Texas.

All the nominees had the backing of home-state Republican senators. Four Florida nominees are awaiting Senate votes. The Senate also confirmed G.O.P.-backed judges from Oklahoma and Louisiana late last year, and one from Texas earlier this month.

The confirmations and pending nominations represent a thaw in the stalemate over judicial openings in red states that had stymied Democratic efforts to fill seats there and forced them to focus only on judicial slots in states represented by two members of their own party.

Republicans say the spate of nominees from their states shows they are willing to bless the judicial picks of a Democratic president as long as they don’t find them too extreme.

“I think what we’ve demonstrated is, we are willing to work in good faith,” said Senator John Cornyn, Republican of Texas and a senior member of the Judiciary Committee who supported the nominees for his state. “When there are qualified people who aren’t politicians wearing black robes, we’re happy to work with the administration.”

The tension over red-state judges stems from a quirky Senate custom. Under a longstanding practice, senators can exercise veto power over district court nominees in their home states by refusing to return what is known as a blue slip granting their approval.

Reluctant to see too many nominees picked by a Democratic president ascend to the bench, many Senate Republicans have been slow to give their consent or have refused altogether. The logjam has led activists to urge Democrats to stop honoring the blue slip tradition, which was jettisoned by Republicans for appeals court nominees during the Trump years, allowing them to override Democratic objections. Democrats have now stopped recognizing the blue slip for appeals court nominees as well.

But Mr. Durbin is reluctant to abolish the blue slip for district courts, fearing it would backfire on Democrats if Republicans regained power. He has encouraged the White House to work with Republicans to find credible nominees that both sides can swallow. In an interview, he said the success of those efforts should quiet demands to dump the blue slip.

While crediting Mr. Durbin with making inroads in Republican-led states, progressive activists say he should still end the practice, to allow the White House and Senate to move more quickly to fill vacancies as they try to match the number of judges Republicans installed during the four years that Mr. Trump was in the White House. They predict that Republicans will steamroll Democrats if they regain the Senate majority and White House.

“They should be eliminated,” Russ Feingold, a former Democratic senator from Wisconsin who now heads the American Constitution Society, said of blue slips. “It is the right thing to do.”

Critics of the blue slip note that the red-state confirmations and nominations, now numbering just under 30, have slowed the overall confirmation push because they have required painstaking negotiations with Republicans. They point to deep resistance to filling any vacancies in some states such as Alabama and Missouri and note that one Republican senator blocked an otherwise consensus candidate in Mississippi by withholding a blue slip.

Those calling for an end to the blue slip also say the horse-trading with Republicans leads to more conservative judges than would be nominated if the rule were jettisoned.

At the same time, negotiations with Republicans have allowed the Biden administration to influence the ethnic makeup of the courts in G.O.P.-leaning states.

For example, Sarah E. Hill, an Oklahoma judge confirmed in December with Republican support, was the first Native American seated on the federal bench in her state. One of the newly confirmed judges, Cristal Brisco, will be the first Black woman to serve on the bench in Indiana’s Northern District. She and Jacquelyn D. Austin of South Carolina were the 34th and 35th Black women named to the bench by Mr. Biden.

Mr. Durbin acknowledged some frustration in not filling even more spots on the courts more quickly. But he said that given the narrow margins in the Senate, the press of other business and the pervasive partisan atmosphere, he is more than pleased with what has been achieved.

“I look at the reality,” he said. “An evenly divided Senate for two years of the Biden presidency, a one-vote advantage for the other two. I think what we’ve done is politically miraculous.”

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