Two years into his presidency, Joe Biden has already broken records with the number of federal judges confirmed and with the diversity of his judicial choices. And as Democrats prepare to control the Senate for another two years, Biden is well on his way to making his impact on the courts a defining piece of his legacy.
It will only get easier for him if the Democrats win the Georgia Senate ballot on Dec. 6.
The Senate has been tied 50-50, along party lines, for as long as Biden has been president. That means Democrats and Republicans had equal representation on the Judiciary Committee, where GOP members intentionally delayed the confirmation process for a number of Biden’s court picks.
All GOP members have to do is unanimously vote no on a candidate, causing a tie within the committee, and it keeps that candidate stuck there. Every time they do, Senate Majority Leader Chuck Schumer (DN.Y.) must file a so-called discharge petition to force that candidate out of committee and onto the Senate floor for a confirmation vote.
Each discharge petition adds a four-hour wait on the Senate floor. This adds to the delays that come with filing a petition. To date, Republicans have forced Schumer to use a discharge petition for five of Biden’s court picks that have since been upheld. Among them: Supreme Court Justice Ketanji Brown Jackson.
There are currently four other judicial candidates – two chosen by the appellate court and two chosen by the district court – who are still stuck on the Judiciary Committee and need discharge petitions to get out.
Democrats are already poised to have 50 seats in the new Senate. If Sen. Raphael Warnock (D-Ga.) defeats his GOP challenger, Herschel Walker, in the coming weeks, Democrats will have 51 seats. That would mean no more power-sharing in committees, no more votes tied to party lines in the Judiciary Committee, and no more discharge petitions.
“Georgia is very important because we can confirm even more justices, faster, if we don’t have to deal with all the procedural hurdles that come with a tied Senate,” said Brian Fallon of Demand Justice, a progressive judicial advocacy group.
Beyond that, Fallon said, having 51 Democrats in the Senate would put Biden in a stronger position to fill potential seats on the Supreme Court.
“If vacancies arise on the High Court in the next couple of years, Biden will be in the driver’s seat,” he said. “It will be the opposite of the situation in 2014, when the loss of the Senate cost Democrats the ability to change the composition of the court for a generation later [conservative Justice Antonin] Scalia is dead.”
A 51-49 majority would also give Democrats some breathing room to confirm judges, in case a single senator is ill or otherwise absent. Earlier this year, for example, Democrats were unable to confirm any judges during an entire stint while Sen. Patrick Leahy (D-Vt.) was out undergoing hip surgery.
Warnock and Walker toppled in the polls leading up to Election Day on November 8. A poll released on Tuesday showed Warnock with a slight edge heading into the runoff.
Democrats may struggle to confirm judges in the next couple of weeks as Warnock will likely campaign in Georgia through Dec. 6. The Senate is currently scheduled to return on Monday.
Carl Tobias, a law professor at the University of Richmond and an expert on judicial nominations, said Schumer would be smart to immediately line up votes on candidates who have at least some GOP support.
“Democrats can avoid close ballots by moving candidates who have bipartisan support, such as the five appellate candidates who are present and most of the 15 district court candidates present,” Tobias said.
As of this week, Biden has confirmed 85 judges to federal court seats for life, which is more than decades of his predecessors. At this point in their presidencies, Donald Trump had 84 confirmed, Barack Obama had 43, George W. Bush had 80, George HW Bush had 71, and Ronald Reagan had 83. Former President Bill Clinton is the only one who had surpassed Biden at this point, with 143 judges confirmed.
Biden also went ahead with his promise to diversify the federal bench, breaking the typical practice of tapping white, male corporate lawyers for judges. His choices included public defenders, voting rights advocates, and union organizers, as well as historic firsts with Native Americans, Black women, LGBTQ candidates, and Muslim Americans.
“He is proud to have fulfilled the promises he has made to the country with respect to justices, including placing the first black woman on the Supreme Court, appointing more black women to appellate courts than all his predecessors combined, a significant increase in Latin and AAPI [Asian American and Pacific Islander] diversity and make the majority of candidates women,” said White House spokesman Andrew Bates.
“He looks forward to continuing this important work with the renewed Democratic majority in the Senate.”