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Dick Durbin

Sen. Dick Durbin (D-Ill.) listens during a Senate Judiciary Committee business meeting to vote on Supreme Court nominee Judge Ketanji Brown Jackson on Capitol Hill on April 4, 2022 in Washington, D.C. (Photo: Anna Moneymaker/Getty Images).

'Lunacy': Democrats Risk Running Out of Time to Confirm Federal Judges

"Democrats aren't filling open seats right now in federal district courts because, for unfathomable reasons, they are letting red state senators block nominees," said one critic.

Julia Conley

Warning that U.S. President Joe Biden may lose his chance to confirm more circuit and district court nominees after the midterm elections if Republicans win a Senate majority, legal scholars are calling on Democratic lawmakers to immediately ramp up confirmations of federal judges.

"It's lunacy not to fill [judicial seats] immediately and by any means necessary."

Democrats have confirmed 16 nominees to the country's 13 circuit courts, which have the last word on federal appeals before they proceed to the U.S. Supreme Court. The party needs to double its confirmations by November, Bloomberg Law reported Wednesday.

The Senate Judiciary Committee held confirmation hearings last week for nominees to the U.S. Court of Appeals for the District of Columbia Circuit and for the 6th Circuit, but 11 current or expected vacancies do not have a nominee lined up to fill them.

To speed up the process, Rakim Brooks, president of progressive advocacy group Alliance for Justice, suggested to Bloomberg that the committee confirm judicial nominees by order of priority rather than holding hearings with two circuit and three district court nominees at each confirmation hearing, which the panel plans to hold every two weeks while the Senate is in session.

"At a bare minimum, they've got to fill all of the circuit court seats, and that's not sort of how they're tracking," Brooks told Bloomberg.

An aide for the committee told the outlet, however, that Democratic leaders see no "reason for us to change the way we're operating."

Considering the time the party has before the midterm elections and potential Republican takeover, lawmakers are unlikely to fill all the empty circuit court seats, leaving some of the most powerful courts in the country vulnerable to vacancies that could persist for the rest of Biden's time in office and eventually be filled by Republican nominees.

As Bloomberg reported:

The Senate began a two-week recess June 27, and will return for about a month before leaving again through Labor Day. The Senate will be in session for most of September and for two weeks in October in the run-up to Election Day when 35 seats are on the ballot.

That means opportunities for eight to 10 more circuit nominees to testify before the committee, advance to the floor, and receive the customary two votes necessary for confirmation. Some need three depending on whether the committee deadlocks on their nomination.

If the nominees already sent to the Senate are confirmed and the White House picks candidates to fill the remaining hearing slots, it would still leave five to seven circuit seats on the table when the year runs out.

Critics on Wednesday noted that Democrats on the Senate Judiciary Committee are continuing to allow Republicans to submit or withhold "blue slips" for district court nominees—opinions about nominations from senators who represent the nominees' home state which can be used to block a confirmation.

When Republicans controlled the Judiciary Committee under the Trump administration, they did away with blue slips for circuit nominees, allowing the party to confirm federal judges at breakneck speed—confirming 54 judges to the circuit court.

Alex Aronson, managing director of the Georgetown Institute for Constitutional Advocacy and Protection, tweeted Wednesday that it is "way past time" to abandon the "arcane Senate tradition."

Sen. Ron Johnson (R-Wis.) earlier this year withheld a blue slip for Judge William Pocan, who Biden nominated to the U.S. District Court for the Eastern District of Wisconsin.

As progressives call on the White House to back far-reaching reforms to the Supreme Court in the wake of the overturning of Roe v. Wade, Slate journalist Mark Joseph Stern said Wednesday that the right-wing takeover of the high court is not the only thing standing in the way of Democrats taking control of the judicial system.

"Democrats aren't filling open seats right now in federal district courts because, for unfathomable reasons, they are letting red state senators block nominees," Stern said. "It's completely outrageous."

"It's lunacy not to fill [judicial seats] immediately and by any means necessary," he added.

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