WASHINGTON — President Joe Biden has won Senate confirmation for more than 80 of his nominees to be federal judges, a breakneck speed that outpaces former President Donald Trump at this juncture of his presidency.
The Democratic-led Senate confirmed four new circuit court judges in the last two weeks, most recently U.S. District Judge Florence Pan to the powerful U.S. Court of Appeals for the D.C. Circuit, by a 52-42 vote, bringing Biden's total to 83. By contrast, Trump had installed 69 judges at this point in his tenure.
Still, Biden is playing catch-up after Trump and Senate Republican Leader Mitch McConnell hit the gas in the second half of Trump's term and brought his total to 231 judges — mostly young conservatives poised to shape American law for generations, including three Supreme Court justices who voted to overturn Roe v. Wade.
Trump's total tops any first-term president since Jimmy Carter. The most recent two-term presidents, Barack Obama and George W. Bush, each secured 325 Senate-confirmed judges for district courts, circuit courts and the Supreme Court over eight years. (The numbers drop slightly when judges who were confirmed to a lower court and then elevated by the same president are counted as one.)
Biden has chosen an unusually diverse slate, with high shares of Black, Latino and Asian American judges, and he has put a premium on nominees with a background as public defenders or civil rights lawyers, picking fewer prosecutors and corporate lawyers.
But will Biden continue outpacing Trump and his predecessors?
That question will be answered by voters in key swing states in the upcoming midterm election as they decide which party controls the Senate for the next two years. The current 50-50 split means Republicans need just one net gain to capture the majority.
If Democrats hold on, Senate Majority Leader Chuck Schumer, D-N.Y., would continue to prioritize votes on Biden's picks. He has about three months left in the current session to confirm more judges and has highlighted the judiciary to rally liberal activists around keeping the Senate in Democratic hands.
“I made clear confirming more of President Biden’s judicial nominees would be a top priority for Senate Democrats, and we’re making good on our promise,” he told reporters. “We’ve come a very long way but there’s much work left to be done.”
If Republicans seize control, it would give McConnell, R-Ky., the power to allow or deny votes on any of Biden’s nominees. Last year, he wouldn’t commit to holding a vote on a Biden nominee for Supreme Court in 2023, should a seat open up, and said it’s “highly unlikely” he’d let the Democrat fill a vacancy in 2024, a presidential election year.
McConnell's allies say a GOP-run Senate would force Biden to pick judges who are acceptable to conservatives in order to get floor votes. Many of his current nominees don't fit that criterion.
"Clearly, if we're in the majority, he'll have to consult with us on judges and other executive branch noms," Senate Minority Whip John Thune, R-S.D., told NBC News. "I assume it will affect and temper the kinds of nominees he sends up, knowing that he's going to have to get him through a Republican Senate."
"They're going to have to be judges that you would expect a Republican Senate to be able to move on," he said.
McConnell has previously used extraordinary tactics to keep liberal judges off the courts and to pave the way for the Senate to confirm more conservative judicial nominees under Trump. He has made it a careerlong priority to steer the courts to the right, blocking President Barack Obama from filling a Supreme Court vacancy in 2016, citing the nearing election, before confirming Trump-picked Amy Coney Barrett the week before the 2020 election.
McConnell's tactics have delivered big wins for Republicans, with the new 6-3 conservative Supreme Court recently revoking the constitutional right to an abortion, expanding protections for gun owners and broadening religious rights.
Sen. Sheldon Whitehouse, D-R.I., a senior member of the Judiciary Committee, said a GOP-run Senate would hand the judicial nominating process “back to whoever the dark money backers of the Federalist Society” want, referring to an influential conservative judicial organization with leaders who vetted Trump’s judges.
Brian Fallon, who runs the progressive courts group Demand Justice, said a Republican-led Senate “would bring President Biden’s reshaping of the judiciary to a grinding halt.”
“The last two years have seen Biden set records in terms of the number of judges confirmed and also seen him dramatically shift the paradigm of who gets nominated. All that is at risk in November,” he said. “If Democrats fail to hold the Senate, it also probably means we can kiss goodbye to any hopes of Biden filling a vacancy that may unexpectedly arise on the Supreme Court.”
For now, Democrats' judicial focus is on the lame-duck session.
Senate Judiciary Chair Dick Durbin, D-Ill., said in an interview he plans to advance more than 20 additional nominees this year.
“I’m hoping we can do all those, plus more,” he said. “I think this is going to be a remarkable achievement if we do.”
If he remains chair for two more years, Durbin said, he intends to preserve the “blue slip” courtesy that allows senators to effectively veto picks for district courts that oversee their home states. Republicans ended the tradition for circuit judges in the Trump era and some liberals want to end it for district judges so that GOP senators in red states cannot block Biden’s nominees for vacancies.
But Durbin said: "I’m sticking with it. We’ve made it work."