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A Senate in Democratic hands clears the path for Biden to keep remaking the courts

The party's hold on the Senate majority, as projected by NBC News, means Democrats can confirm more liberal and diverse judges without the threat of Republican obstruction.
President Joe Biden speaks at Delaware State University
President Joe Biden.Evan Vucci / AP file

WASHINGTON — The Democratic Party's stunning hold on Senate control will enable President Joe Biden and his allies in the chamber to do something that has been a low-key success: churning out federal judges without the threat of Republican obstruction.

The Senate majority, inked by a Democratic win in Nevada, gives Biden a clear runway to continue one of his most consequential pursuits: reshaping federal courts with a diverse array of lifetime-appointed liberal judges, including record numbers of women, minorities, former public defenders and civil rights lawyers.

The Senate has confirmed 84 Biden-nominated judges, including Justice Ketanji Brown Jackson as the first Black woman to serve on the Supreme Court, and 25 appeals court judges, confirming judges at a faster rate than President Donald Trump had before the 2022 election.

“Senate Democrats have been committed to restoring balance to the federal judiciary with professionally and personally diverse judges,” Senate Majority Leader Chuck Schumer told NBC News on Saturday night. “With two more years of a Senate Democratic majority we will build on our historic pace of judicial confirmations and ensure the federal bench better reflects the diversity of America.”

Trump, in tandem with Senate Republican leader Mitch McConnell, confirmed 234 judges in his four years — including three Supreme Court justices and scores of young conservatives poised to rule on cases for generations. Senate Republican leaders told NBC News before the election that if they took the majority, they would use their power over the floor to compel Biden to send more centrist judges that GOP senators could support.

“This is a major bullet dodged, because it means Biden will have the opportunity to build on what will go down as a signature legacy item for him, which is a true makeover in the composition of the courts if he’s given a full four years of running room,” said Brian Fallon, who runs the courts-focused liberal group Demand Justice. “He won’t just be competitive with Trump over a four-year span with total nominees confirmed, he’ll also have left a lasting mark.”

Like other liberals, Fallon feared that Republicans would have slowed judicial confirmations to a crawl if they took control of the Senate. He said Democrats keeping control means that if a Supreme Court vacancy were to open up, Biden’s nominee would be assured a vote. But he said he doesn't agree with some liberals who argue Justices Sonia Sotomayor or Elena Kagan should retire so Democrats can hold their seat for longer by confirming younger justices.

Fallon argued that a “silver lining” to a possible Republican-controlled House is that the halting of Biden's legislative agenda means “judicial nominations are the only game in town in terms of the agenda in the Senate,” at least if the second half of Biden’s term is anything like Trump’s last two years.

NBC News projected Saturday that Democrats would win the Nevada Senate race and carry at least 50 seats, enough to keep control with the tie-breaking vote of Vice President Kamala Harris — and could get a 51st if they win the Georgia Senate runoff on Dec. 6. NBC News has not yet projected which party will control the House, with a close battle and votes still being counted in key races.

That leaves conservatives with little hope of thwarting Biden's selected judges, after unsuccessful attempts in recent years to sway centrists like Sen. Joe Manchin, D-W.Va., and Sen. Kyrsten Sinema, D-Ariz., to vote down some of them.

“Biden promised unity and moderation but has consistently nominated radical judges to appease the liberal dark money groups who helped elect him. Unfortunately, Senate Democrats have simply rubber-stamped his picks and I expect that pattern to continue,” said Carrie Severino, the president of the Judicial Crisis Network, a well-funded advocacy group that fights for a more right-leaning judiciary and does not disclose its donors.

“JCN will continue to use whatever means necessary to highlight Biden’s extremist judges who care more about delivering liberal policy results from the bench than following law,” she said.

While the current 50-member Democratic caucus has been unified behind Biden’s judicial nominees, a 51st seat for the party could further embolden it. Currently the 50-50 split means the Judiciary Committee is also evenly divided and Republicans can force Democrats to jump through an additional hoop and eat up hours of Senate floor time to secure a vote on a judge. If Democrats hold on to their seat Georgia, they could deny the GOP that option.

Currently there are 76 vacancies on district courts and 9 on appellate courts. That number is sure to grow as more judges retire and open up their seats in the next two years.

Some on the left have pushed Senate Judiciary Chair Dick Durbin, D-Ill., to end a courtesy known as the “blue slip” that allows senators to block consideration of district court judges in their home state. As a practical matter, that means Democrats currently need a Republican sign-off to confirm judges in red states. (GOP leaders eliminated the rule for circuit judges but kept it for district courts.)

Asked by NBC News in September if he would preserve the tradition, Durbin said it has worked for the Senate and he’s “sticking with” it if he remains Judiciary chairman for two more years.

Democrats' hold on the Senate alleviates the pressure on Schumer to push through judges in the lame duck session, which party leaders were planning to do in case Republicans took control, wary of whether they would allow votes on those nominees.

For now, both parties are expected to spend heavily in the Georgia runoff between Democratic Sen. Raphael Warnock and Republican challenger Herschel Walker, which could make it slightly easier for Democrats to maneuver Biden's judicial nominations.

“Georgia is still important for the judicial confirmation project because it’s really been a bitch to have to deal with all these discharge petitions on the floor,” Fallon said. “The process will be even more streamlined if we can add Georgia in the runoff.”