Manufacturing More Judicial Vacancies for President Biden to Fill?

October 20, 2023

Biden Manufactures Judicial Vacancies | First Liberty Insider

by Jorge Gomez • 6 min read

The Biden administration is losing momentum on federal judges. Confirmations appear to be slowing down significantly. Since the U.S. Senate returned from recess in early September, six of President Biden’s nominees have been confirmed. That’s down from previous years.

In September and October of 2021, Biden saw 17 of his nominees confirmed. Eight were confirmed in the same period of 2022.

On cue, judicial activists and many Left-wing radical groups are clamoring for the Senate to get things going. They want to see more Biden judges confirmed ASAP.

The New York Times recently ran a guest essay by Erwin Chemerinsky, dean of the law school at the University of California, Berkeley. Titled “Democrats Need to Move Fast to Appoint Judges, Now More Than Ever,” Chemerinsky’s piece urges the party in power to fill all federal judicial vacancies before next year’s elections. He worries the Biden administration is “running out of time.”

Shocking? Not really. Chemerinsky is a university professor with liberal views. Him pushing for more liberal judges on the federal bench is par for the course.

But there is something more controversial. It does not seem Chemerinsky would be satisfied with Biden judges filling current vacancies. He openly calls to manufacture more vacancies so the President and his party can stack those open slots with liberal judges.

How can these new vacancies be created? Chemerinsky and others say it’s time for many judges to take “senior status,” a type of quasi-retirement in which a judge may continue to hear cases, but their judicial seat is open and can be filled by the sitting president.

Chemerinsky says the quiet part out loud:

“There is little reason for judges not to take senior status…Taking senior status allows the president to fill that seat on the bench…It is critical for federal judges who would like to be replaced by a Democratic president to take senior status so that Mr. Biden can appoint their successors with sufficient time to allow them to be confirmed by the current Senate.”

People for the American Way—one of the most radical organizations in the country—echoes that message. They recently published a Q&A guide tiled “How Jurists Taking ‘Senior Status’ Can Lead to Confirmation of More Biden Judges.” They say, “a judge who wants their replacement confirmed by the end of 2024 should announce their plans for senior status as soon as possible.”

Sound familiar? It should. This tactic is often used when the Left can’t get its way on judicial nominations. Remember in 2021 when radical groups put on an intimidation campaign calling on Supreme Court Justice Stephen Breyer to retire? Take a moment to read our article and refresh your memory.

Let’s call out this revived interest for “senior status” for what really is. It’s all about pressuring judges to step aside. Their message to judges is clear: your time is up. Make room.

To a degree, we could even call it judicial intimidation. Much of this is based on making judges fear that if they don’t give up their seat now, they risk being replaced by a jurist with a different philosophy. Possibly a judge who would “undo” their legacy.

So, what’s really behind this sudden push for more vacancies? Simply put, these groups seem to be upset that Biden’s judicial confirmations pale in comparison to those of his predecessor. At this rate, Biden simply is not on track to have the same impact on the judiciary.

In its first two years, the Biden administration got off to a fast start on judicial confirmations. The White House and Senate leaders touted a “historic” pace of confirmations. Left-wing liberal groups celebrated the judges being put on the bench.

But now, Biden is lagging. As of October 18 of each president’s third year, here’s what federal confirmations look like:

Biden: 147
Trump: 156
Obama: 108
Bush: 161
Clinton: 166

Even with 100+ confirmations, First Liberty consistently reminded Americans that President Biden’s impact on the judiciary could be limited.

Why? In large part because Biden inherited a lot fewer vacancies than his predecessors.

In 2021, we reported that Biden had approximately 40% less vacancies available to fill than President Trump. That percentage really hasn’t changed much. It’s virtually the same today.

As of October 17, 2023, Biden has just over 60 available compared to Trump’s nearly 100 at the same point. That’s about 40% less open seats available. Let’s say Biden filled every single current vacancy. He’d have just a little more than 210 judges on the bench. That still falls short of his predecessor’s total, 234.

In an op-ed for The Hill, former Democratic Senator Russ Feingold says that to supposedly restore “balance” to the judiciary, Democrats need to at least match Trump. To be fair, Feingold doesn’t mention the “senior status” scheme. Nonetheless, he urges action on confirmations:

“Looking ahead, Trump had 187 judges confirmed by the end of his third year. To even tie Trump, the Senate needs to confirm 42 more judges in under three months. Said another way, the Senate needs to confirm five to six judges a week during each of the remaining eight scheduled work weeks this year.”

Throughout the Biden administration, we’ve seen hundreds of judicial nominees confirmed—including many whose records are dismal on religious liberty.

With the clock ticking before next year’s election, radical groups and activists want to more and more of these liberal judges on our courts—and they want them now. Recent slowdowns in confirmations could actually be a sigh of relief for people who respect the Constitution in the face so many radical judicial picks

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