Richmond Leader

A red wave would cripple Biden's ability to reshape the judiciary 

Although voters won't be choosing which federal judges to nominate on Election Day, their determination of which party maintains dominance in Congress could make or break President Joe Biden 's legacy of reshaping the judiciary if Republicans sweep on Tuesday.

The Senate holds the power to confirm all of the president's federal judicial nominees up to the Supreme Court . If Senate Democrats lose their narrow 50-50 majority in the narrowly divided chamber, with Sen. Mitch McConnell (R-KY) in place to return as majority leader, Republicans would become a major roadblock to Biden's judicial confirmations process, which amounts to 84 confirmed nominees as of Nov. 8.

PRESSURE'S ON SENATE DEMOCRATS FOR BIDEN TO BREAK JUDICIAL CONFIRMATION RECORD

Since taking office in January 2021, one of the Biden administration's primary goals has been to counter the legacy of former President Donald Trump , the Republican predecessor who confirmed 85 judges in his first two years of office.

Biden has also put a prime focus on appeals court judges, confirming 25 as of Nov. 1, while Trump had 29 of such judges by the same date of his second year in office.

If Republicans win back the Senate after Tuesday's election, they would not take control until mid-January. The remaining time could mean Democrats will attempt to confirm as many of the 57 remaining nominees referred to the Senate, as 25 of them have already passed the Senate Judiciary Committee and are awaiting a vote by the full chamber.

Carl Tobias, a law professor at the University of Richmond, told the Washington Examiner he thinks Democrats have a "fair" shot at confirming the remaining seven appeals court nominees and 18 district court nominees if Senate leadership is handed over to the GOP, noting it "could be off by a couple."

But assuming there is a Republican takeover of the Senate, Tobias thinks "they're just going to run out of time" to clear the remaining 32 and that Senate Democrats will likely prioritize the nominees awaiting a full Senate vote. That sentiment was echoed by Russell Wheeler, a governance studies expert with the Brookings Institution who has followed Biden's judicial appointments since January 2021, saying, "Confirmations are going to be very hard to come by" if Democrats lose control.

"That's the lesson of Obama's final two years in office, when the Republicans controlled the Senate," Wheeler told the Washington Examiner, noting that Trump's Democratic predecessor saw just 20 district court and two appeals court confirmations in his final two years in office.

Conversely, if Democrats maintain a hold of their narrow majority, Biden could continue his streak and fight to match Trump's 234 judicial nominees confirmed over four years, as there were 87 vacancies out of 870 federal judgeships as of October this year, and likely more will become open in the next two years.

While Biden is all but guaranteed to surpass Trump's 85 confirmed judges by the end of his second year, the American Constitution Society, a group that has championed his efforts to diversify the judiciary, says the president should not make upstaging his predecessor the main goal.

"We need a concerted effort during the lame duck that is not about making the record books, it’s about filling vacancies with champions of civil rights who will make an impact," Russ Feingold, president of ACS, wrote on Oct. 20.

One of the president's highest achievements was the confirmation of Supreme Court Justice Ketanji Brown Jackson , the first black woman to sit on the nine-member bench and confirmed by a 53-47 vote on April 7.

His landmark Supreme Court appointment reflects the diversity among other appointees, as 75% are women, 25% are black, and 17% are Hispanic among a crowded judiciary that has historically been composed of white men. Additionally, 18 of Biden's appeals court confirmations, including Jackson's 2021 confirmation to the U.S. Court of Appeals for the District of Columbia Circuit, have been people of color.

Tobias said that while the president's judicial nominees present "striking records" for ethnic diversity, he also noted that the experiential diversity among the selections was a landmark achievement given the many "who have done civil rights work ... especially criminal defense work."

While Jackson's resume also includes time spent as a former public defender, so, too, are eight other appeals court judges who have been confirmed under the Biden administration.

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