by Jorge Gomez • 4 minutes
President Biden is not likely to get the same number of federal judges confirmed as former President Donald Trump, according to judicial experts.
Thomas Jipping, senior legal fellow at The Heritage Foundation, estimates a total of 219 judges to be confirmed by the end of the Biden administration. That number falls short of 234 confirmed under Trump.
This is largely affected by the number of vacancies. Jipping notes that President Biden inherited “the smallest percentage of the judiciary in more than 30 years.” And the President still does not seem to have enough empty slots to fill.
“Vacancies are again down to 46, compared to 72 at this point in Trump’s administration, including only a single appeals court vacancy,” Jipping adds.
News reports are echoing that same point. Politico points out that “the challenge for Biden and Democrats in hitting Trump’s mark of 234 confirmations is there are currently just 47 vacancies throughout the federal court system, and just one is an appeals court slot.”
It also doesn’t look like more vacancies are going to open up soon. According to NBC News, more than 100 judges in federal district and appeals courts meet requirements to retire, but have not.
As of September 4, The Heritage Foundation’s Judicial Appointment Tracker shows that 205 judges have been confirmed during Biden’s presidency. Many of those judicial appointments were in states represented by two Senate Democrats, which made it was easier to garner support for confirmation votes.
That’s where the Senate’s “blue slip” tradition comes into play. Though not a formal rule, this requires district court nominees to have the support of their home state senators. It allows those two senators to submit a blue slip and sign off on a prospective judge, or withhold the slip, essentially vetoing the nomination.
Many current vacancies are in states with two Republican senators. Politico noted that “states with large numbers of unfilled slots include Texas (5), California (5) and Missouri (4).” If they want to keep up the pace of confirmations, the President and his party may have to do a bit more work in order to get support of their colleagues on the other side of the aisle.
The President and his party also face limited time to get confirmations through. The Senate is in recess and not expected to return until the second week of September. That only leaves about three weeks of session before the November election.
“There is certainly time to confirm a lot, if not all of these nominees, but it’s a slow-moving process, and it’s going to require a lot of different moving parts to all be in the right place to make it work smoothly,” said John P. Collins, a law professor at George Washington University.
“It might look like months on a calendar, but we’re talking about a matter of weeks,” Collins added. “Particularly before the election, it’s going to be really challenging to get some of them confirmed.”
Still, Senate Majority Leader Chuck Schumer is planning to make judicial nominees a top item even after the election, according to The New York Times. “Putting more judges in before Dec. 31, even though we think we’re going to win the election, is a very high priority,” Schumer said. “I’m going to do everything I can.”
Over the past four years, the Biden administration has put forth dozens of radical and controversial judicial nominees, many of whom have a dismal record on religious freedom.
First Liberty has consistently warned that many of those nominees simply do not inspire confidence that they’ll treat all Americans equally. Instead, their records suggest they could be hostile to religious liberty and unconstitutionally advance their own policy agendas from the federal bench.
We recently sounded the alarm about several Biden judicial picks whose records have generated significant opposition. Some of those nominees have affiliations with radical, anti-Semitic organizations. Some argued against religious liberty and houses of worship in court. Others have espoused legal theories and views far outside the mainstream. We’ve explained that the President and his party could have trouble getting these confirmed.
First Liberty is keeping a close eye on who is selected to sit on America’s courts. We’ll continue providing the facts on any nominees with a radical or unacceptable record.
Read More:
Roll Call: Biden faces hurdles to match Trump on judicial appointments
The White House: President Biden Names Fifty-Fourth Round of Judicial Nominees
Politico: Senate Dems hit judicial crunch time
New York Times: Schumer Promises Year-End Judicial Push as Courts Gain New Political Importance
NBC News: The federal courts are full of judges who could retire but won’t. Little can be done about it.
Federalist Society: How President Biden Is Impacting the Judiciary Despite a Changed Appointment Process
First Liberty: Experts Warn: A Kamala Harris Administration Could Mean More Radical Judicial Nominees
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