Democrats Hold the Senate—and the Ability to Appoint Federal Judges

Barack Obama appointed two justices to the United States Supreme Court, Elena Kagan and Sonya Sotomayor. But in some ways, it’s the justice he didn’t get confirmed who looms largest. When Justice Antonin Scalia unexpectedly died on a hunting trip at a Texas resort on February 13, 2016, Obama turned to the moderate D.C. Circuit Court Judge Merrick Garland, a pick believed to be acceptable to both sides.

After Obama nominated Garland, evidence of earlier support for him among Republicans surfaced. For instance, when President Clinton nominated Garland to the Court of Appeals, then-Senate Judiciary Chairman Orrin Hatch wrote that Garland “is well qualified for his position, and several prominent lawyers from both parties have indicated their enthusiastic support for his nomination…I have not heard any criticisms of his qualifications or his intelligence, and I see no reason why his nomination should be delayed further.” Hatch also stated his views on the confirmation process itself: “I believe that we should allow nominees who are fully qualified for their positions, who understand the limited role of judges in our constitutional system of government, and whose views are within the mainstream of judicial ideology to be voted on by the Senate. It is the right thing to do.”

That was back in the days when the rules for judicial confirmations applied equally to both parties. As it turned out, Republicans decided they didn’t apply when they wanted to hold a seat open so they could try to fill it later. Iowa Senator Chuck Grassley, head of the Senate Judiciary Committee when Obama nominated Garland, took a starkly different view from Hatch’s earlier one. “Today the President has exercised his constitutional authority. A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.” It was March 16, 2016, a month after Scalia’s death, and the primary season had only just started.  

Mitch McConnell, as Senate Majority Leader, ruthlessly blocked efforts to give Garland a Judiciary Committee vote, let alone to confirm him. Many Republican senators refused to have so much as a courtesy meeting with the distinguished jurist. McConnell took up Grassley’s claim that a justice couldn’t be confirmed in the final year of a presidency.

That seat, which McConnell successfully held open until the end of Obama’s presidency, went to Neil Gorsuch, a 10th Circuit judge, billed as a conservative legal scholar, committed to precedent. Gorsuch went on to side with the majority when the Court reversed Roe v. Wade, so you can draw your own conclusions in that regard.

Trump’s second appointment to the Court, Brett Kavanaugh, was a colleague of Garland’s on the D.C. court. Kavanaugh, who was groomed for that job by the Federalist Society, succeeded his mentor, Justice Anthony Kennedy, who had been the Court’s swing vote, sometimes siding with the conservative wing, as he did when the Court gutted Section 5 of the Voting Rights Act in Shelby County v. Holder, while voting with the liberals in other cases like Obergefell v. Hodges, where he wrote the opinion on marriage equality. Kennedy resigned suddenly, and well past the point in the Court’s term when a retirement is typically announced—he had already hired his clerks for the following year, a sign Court-watchers look for to determine whether a Justice will step down that term. Kavanaugh will forever be known for his love of beer and for the squelched investigation into whether allegations of sexual assault at a high school party he attended with his friend Squee were true.

Trump’s third appointment was Amy Coney Barrett, and if you need confirmation that irony died during the Trump administration, here it is. Trump offered Barrett the nomination just three days after Ruth Bader Ginsburg’s death. Her confirmation came not only in a presidential election year, but on October 26, long after early voting had started (more than 58 million ballots had already been cast, according to reports) and a week out from Election Day itself in the 2020 election that Trump went on to lose. McConnell showed no shame. Instead, he had remarkable discipline in doing whatever it took to confirm federal judges. Senate Minority Leader Chuck Schumer aptly called Barrett’s nomination process a “cynical power grab.”

That’s how we ended up with a 6-3 conservative court that reversed almost 50 years of American jurisprudence and ended access to abortion, putting rights like marriage equality and the decision to use contraception on the chopping block. But there’s more to the story.

At the end of the Obama administration, there were 104 judicial vacancies in the district courts and the courts of appeal, plus the one at SCOTUS. That’s unheard of. Appointing federal judges is one of the most important jobs of the presidency, shaping a legacy that lasts well beyond a president’s time in office. Ronald Reagan’s appointments had an impact for decades, with 15 or so of them still on the bench. On the floor of the Senate, after Barrett’s confirmation, McConnell said with glee, “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.” So why did Obama leave more than 100 vacancies behind?

Garland wasn’t the only nominee McConnell blocked during the Obama administration. Once Republicans gained control of the Senate in 2014, it became much more difficult for Obama to confirm his judicial nominees. The process had already been lengthy, with some confirmations taking more than a year. Now Republicans created a bottleneck that prevented nominees from getting a vote in the Senate Judiciary Committee or held up those who had already cleared the Committee from the floor vote that must take place for confirmation.

Some potential nominees never even got the nod because Republican senators withheld their blue slips. A blue slip is, quite literally, a blue piece of paper that the Senate Judiciary Committee uses to solicit views of home state senators on the president’s judicial nominees. It’s considered to be a part of the “advice” process that Article II Section 2 of the Constitution establishes for the Senate to provide the White House with feedback on its nominees, before it gets to the “consent” part—the vote on the Senate floor that the Constitution requires before they can take office. But the blue slip’s use is not constitutionally compelled; it’s merely a practice. In fact, the Trump White House scrapped it on numerous occasions.

That takes us to today. Joe Biden went into the midterms with one of the most successful records on judicial vacancies in modern history. Trump appointed 51 justices and judges during his administration. In addition to Justice Ketanji Brown Jackson, as of November 1, 2022, the Senate had confirmed 83 Biden judicial nominees to the courts of appeal and the district courts.

But there are still close to 100 judicial vacancies, 57 of them with nominees, others awaiting them and, some, “future vacancies”—seats where a judge has already advised the White House they plan to retire at a later date. Despite the fast pace the Biden White House set, confirmations take time, and they ran out of it. It’s important to note that some of those vacancies are in states where there isn’t a nominee for one or more vacancies, because Republican senators declined to return blue slips on well-qualified potential nominees for no reason other than the fact that they are the picks of a Democratic president. It’s the raw hypocrisy of politics at its worst, and it’s time for the Biden White House to reject across the board use of the blue slip, which is meant as a courtesy to home state senators but has become a tool of obstruction.

Joe Biden now has the opportunity to begin to undo some of the worst damage of the Trump era. With the balance of the House still undecided, it’s not clear that he’ll be able to pass the legislation he’s promised to take on if he has the votes in Congress. But he can reshape the federal judiciary, with control of the Senate for confirmation. The House is not involved, and since confirmation requires only a simple majority of senators present, Biden has the votes.

Biden is now set to make progress on many of those judicial vacancies, some of them in the lame-duck session, and more after the new Congress is seated in January. If he agrees to bypass the blue slip, he will be able to confirm judges to the bench in states where obstructive senators have prevented even nominations for vacancies; for instance, Alabama has two. The people in those states deserve a balanced judiciary, not one whose ranks are only filled when the Republicans hold the White House.

It’s important to fill those seats so the judges can do their job. But appointing judges to the district courts and appellate courts also sets in motion a process of developing a deep bench for appointments to higher office. It’s what you need to have in place so that you can appoint someone with the experience of Ketanji Brown Jackson when a Supreme Court vacancy occurs.

The same is true for U.S. Attorney appointments, including the nastiness of the blue slip. As of October 19, 2022, the Senate had voted to confirm nominees for 52 of the 93 spots nationwide. There is only one Biden U.S. Attorney confirmed in the 11th Circuit, which includes Florida, Georgia and Alabama. It’s important to have people in these key roles to do their jobs and to develop expertise. Where blue slips are being unreasonably withheld out of political spite, that process shouldn’t be honored. Biden has the opportunity to restore the use of the blue slip to what it was meant to be, a way for home state senators to confer on nominees and give the White House the benefit of their advice, not to block the path out of political animus.  

Federal judges take an oath that requires them to “administer justice without respect to persons, and do equal right to the poor and to the rich” and to “faithfully and impartially discharge and perform all the duties” the Constitution and laws of the United States require. Instead, some judges behave in a manner that continues to damage the public’s confidence in them. Last week at the Federalist Society’s annual meeting, liberal members of the press were called out by name (as if the environment wasn’t already dangerous enough for them) by Bill Pryor, the Chief Judge of the 11th Circuit Court of Appeals, in the course of a PowerPoint presentation that included mockery of Rhode Island senator Sheldon Whitehouse’s view that the Federalist Society’s Leonard Leo is at the center of a web of dark money. Amy Coney Barrett took the stage later and cracked jokes about abortion rights protestors. As with so many of our institutions, the judiciary can only do its work when the public has confidence in it. Some of our judges seem to have forgotten that and that they have life tenure to serve the American people, not a political agenda. Like all of us, they may have views, but they should not express them publicly, certainly not at one of the marquee events of the year for the Republican Party.

President Biden won’t be relying on a Democratic equivalent of the Federalist Society to give him a list of people he should appoint, based on their adherence to dogma. He won’t be looking for personal loyalty. Instead, he’ll continue his track record of naming decent, qualified people with diverse backgrounds to the federal bench so the rule of law can be maintained and, over time, confidence in the judiciary can be restored, because we have judges who behave with integrity and deserve that confidence. 

In the end, our votes mattered. Against the odds, the Democrats maintained control in the Senate and the President can continue to do this important work. When we stick together and vote, we win.

We’re in this together,

Joyce