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Biden’s Judicial Picks Hit Turbulence, Confirmations Could be Slowing Down

by Jorge Gomez • 6 min read

President Biden continues to outpace every president since George W. Bush on federal judges. The Senate has now confirmed more than 115 of his nominees. However, this rapid pace of confirmations could be slowing down.

NBC News reports the absence of two senators has caused some delays in recent weeks:

“The Judiciary Committee, which advances nominees for full Senate confirmation, is hindered by a pivotal Democratic absence. Sen. Dianne Feinstein of California was hospitalized ‘with a case of the shingles,’ prompting the committee to delay a scheduled Thursday meeting to advance judicial nominees; she said she hopes to return to Washington ‘later this month.’ And the absence of Sen. John Fetterman of Pennsylvania, who is getting help for clinical depression, forced Vice President Kamala Harris to break ties.”

There’s also been discussion about the Senate’s “blue slip” tradition. Though not a formal rule, this custom requires district court nominees to have the support of their home state senators. It allows the two senators to submit a blue slip and sign off on a prospective judge, or withhold the slip, essentially vetoing the nomination.

In his first two years, most of Biden’s circuit and district court appointments have been nominees in blue states, or those represented by two Senate Democrats, who narrowly control the chamber. But as Bloomberg Law reports, “the majority of current future district court vacancies without a pending nominee are in states with two Republican senators.”

This means the President and his party may have to do a bit more work when vetting nominees and getting them through the confirmation process. They’ll have to get support of their colleagues on the other side of the aisle if they want to keep up the rapid pace of confirmations.

Liberal groups have let out a collective groan, saying the minority power could “abuse” the blue slip custom to halt Biden’s nominees and stall the pace of confirmations. On cue, the liberal-leaning New York Times published an editorial titled “How to Stop a Senator from Blocking a Federal Judge.” They argued the blue slip tradition is “a fundamentally undemocratic practice that gives far too much power to individual senators,” and said “it’s far past time” for Senate Judiciary Committee Chairman Dick Durbin to “unilaterally” get rid of it.

What’s more, the judiciary committee has no hearings scheduled to consider new judicial nominees this month.

Fewer Vacancies and Controversial Nominees

Biden and his party have brought about some change on the federal bench. But this doesn’t necessarily mean he’s going to have the same impact on the judiciary as his predecessor. He faces an uphill battle if he wants to surpass the more than 230 judges confirmed under the Trump administration.

Biden has about 60 fewer vacancies available at this point—40% less—than Trump. He would need dozens of judges to retire soon if he wants to “reshape” the judiciary.

There could be further slowdowns ahead given the controversial and radical record of several Biden nominees. Many of these selections have drawn staunch opposition. National Review points to a handful, including Charnelle Bjelkengren, who failed to answer basic constitutional questions about what Article II and Article V say.

First Liberty has previously warned about several appellate court picks. While in private practice, some of them worked for—or were endorsed by—some of the most radical groups in the country, which suggests they could be hostile to religious liberty and unconstitutionally advance a liberal policy agenda from the federal bench. The following are pending a confirmation vote before the full Senate:

• Bradley Garcia, nominee to the influential D.C. Circuit. During a hearing, Garcia admitted that he chose to take cases and argued against religious freedom. In the Supreme Court case Our Lady of Guadalupe School v. Morrisey-Berru, he challenged the First Amendment rights of religious schools to freely make employment decisions.
• Nancy Abudu, nominee to the 11th Circuit. She previously worked as senior staff counsel with the ACLU. More recently, Abudu’s legal experience comes from the Southern Poverty Law Center, an infamous organization known for labeling political opponents as “hate groups” or “extremists.” A coalition of more than 50 individuals and organizations—including multiple religious groups—sent a letter to Senate leaders expressing their opposition to her nomination.
• Rita Lin, nominee to the U.S. District Court for the Northern District of California. During a hearing last year, Lin admitted she had called Christians “bigots.” Lin once wrote in a 1998 article about a religious organization: “The problem with the Christian Coalition is…that they are bigots.” She also referred to Christians as “Bible thumpers.” This raises serious questions about whether Lin will treat religious groups equally in court.
• Julie Rikelman, nominee to the 1st Circuit. She is an attorney at the Center for Reproductive Rights, a liberal organization that represented the Mississippi abortion clinic in Dobbs v. Jackson, the Supreme Court case that returned the power to regulate abortion to the states.

Many Americans are worried about the quality and judicial philosophy of the judges confirmed under the Biden administration. Sen. Mitch McConnell said recently, “the American people deserve a judiciary that contains the smartest, most formidable, most qualified legal all-stars in the country.” But, he added, so far, the president and his party are “producing… something else.” Slowing down confirmations could bring a sigh of relief for people who respect the Constitution in the face so many radical judicial picks.

Federal judges make critical legal decisions about your religious freedom. First Liberty will continue to monitor judicial nominees. Our team of experts will continue to provide you with the facts if any of them have a radical or unacceptable record.

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