As election looms, Biden struggles to match Trump's judicial appointments

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Dec 26 (Reuters) - The White House is gearing up for what could be
President Joe Biden's last chance to put his stamp on the judiciary, as
progressive advocates fret that he may fall short of appointing as many
judges as former President Donald Trump did over his four-year term.

With a November 2024 election rematch between Biden and his Republican
predecessor looking increasingly likely, Senate Democrats are pledging to
remain focused on confirming Biden's judicial nominees in 2024 and adding
to the 166 already approved to sit on the bench.

After two years of matching or exceeding Trump's pace of judicial
appointments, Biden's rate compared to his predecessor's slowed in 2023,
as Senate Republicans wielded their influence and forced the White House
to bargain with them over potential nominees.

Russ Feingold, a Democratic former U.S. senator and leader of the liberal
American Constitution Society, said that slower pace has put Biden's
ability to continue to appoint diverse judges to the bench at risk as an
election looms that will decide whether he gets a second term and
Democrats retain control of the Senate.

"Now we're looking at a situation where if either the presidency switches
or the Senate switches, most of this progress probably will be stopped or
greatly stifled," he said.

WHY IT MATTERS
Biden throughout his tenure has sought to fulfill a 2020 campaign pledge
to bring greater diversity to the judiciary, whose judges have
disproportionately been white men and have usually been ex-prosecutors or
former law firm partners.

Two-thirds of Biden's confirmed nominees are people of color, and 108 have
been women, according to the Leadership Conference on Civil and Human
Rights.

He has frequently nominated civil rights lawyers and public defenders to
the bench, as Democrats aim to counterbalance the conservative influence
of Trump's 234 judicial appointees.

Prominent confirmed judges in 2023 included Julie Rikelman, a former
abortion rights attorney now on the Boston-based 1st U.S. Circuit Court of
Appeals, and Dale Ho, a voting rights advocate now serving as a federal
judge in Manhattan.

"All year long, this Senate majority has prioritized confirming judges who
add to the bench's personal and professional diversity, and we're going to
continue going into the new year," Senate Majority Leader Chuck Schumer
said on the Senate floor on Dec. 11.

But while the Senate confirmed 69 judges in 2023, that number fell below
the pace of confirmations during Trump's third year, when 102 were
confirmed.

For several months, the Senate Judiciary Committee struggled to process
nominees amid the absence of an ailing panel member, Democratic Senator
Dianne Feinstein, who died in September.

WHAT IT MEANS FOR 2024
Biden could make up for that slow down in 2024. He has announced 30 other
nominees who have yet to be confirmed. There are 53 current vacancies on
the federal bench awaiting a nominee, and more vacancies are expected.

So, he could, in theory at least, still match Trump's four-year total.

But 22 of the vacancies are in states with one or two Republican senators,
who thanks to a Senate custom known as the "blue slip" have the ability to
effectively veto nominees from their states they do not approve of and
hold seats open for a potential Republican president.

"There's plenty of vacancies, but will he be able to nominate in red
states?," said Russell Wheeler, a visiting fellow at the Brookings
Institution who tracks judicial nominations. "That's the big question."

Progressive groups have urged Senator Dick Durbin, the Judiciary
Committee's current Democratic chairman from Illinois, to abandon the
"blue slip" custom, which they say has hindered Biden's ability to appoint
judges in conservative-leaning states and much of the South.

Leah Litman, a University of Michigan Law School professor who co-hosts
the liberal legal podcast "Strict Scrutiny," said Biden's inability to
nominate judges in those states will ensure Republican lawmakers can "do
whatever it is they want" without concern courts will block laws they
enact.

"We have seen the effect that Republican blockades for district courts has
had," she said.

She pointed to Texas, where Trump was able to fill multiple vacancies with
conservative judges who have often been sympathetic to challenges to Biden
policies. One, U.S. District Judge Matthew Kacsmaryk in Amarillo,
suspended approval of the abortion pill mifepristone. It remains available
pending U.S. Supreme Court review.

Durbin has acknowledged "some judicial vacancies in states with Republican
senators have languished for months on end," but he has stood by the
tradition and encouraged Republicans to demonstrate they can compromise
with the White House.

The White House in recent months has pointed to successes on that front,
with district court judges confirmed in 2023 from Indiana, Idaho and
Louisiana and recent nominees pending from Florida, South Carolina and
Texas.

Biden closed out 2023 with an announcement that he intended to soon
nominate five new judges in states with Republican senators, including two
in Texas who have the support of Senators John Cornyn and Ted Cruz.

https://www.reuters.com/world/us/election-looms-biden-struggles-match-
trumps-judicial-appointments-2023-12-26/