What Could the New Year Bring for America’s Judiciary?

January 5, 2024
FLI Insider | Senate Judiciary Committee

by Jorge Gomez • 5 min read

As the New Year gets underway, First Liberty is keeping a close eye on the federal judiciary. Here’s a quick rundown of two important issues that could become a focal point in 2024.

Entering 2024, Biden Still Trails Predecessors on Judges

With Election Day looming, we could see President Biden push his party in the U.S. Senate to put their foot on the gas and confirm more federal judges in the coming months.

Despite getting off to a quick start, Biden’s confirmations lag compared to his predecessors. As of Jan. 2, Biden had 166 confirmed judges compared to Trump’s 187.

In his first two years, most of Biden’s circuit and district court appointments were nominees in states represented by two Senate Democrats, who narrowly control the chamber. According to Reuters, there are now 53 vacancies on the federal bench awaiting a nominee. But 22 of those reside in states with one or two Republican senators.

The Senate’s “blue slip” tradition, though not a formal rule, requires nominees to have the support of their home state senators. This means senators can indefinitely stall nominees they do not support.

The President and his party are now having to work harder to find support on the other side of the aisle. It’s part of the reason judicial confirmations have slowed in recent months.

Biden closed out 2023 by announcing his 43rd round of federal judicial nominees, bringing the total to 209 since the start of the administration. This round includes five district court nominees in four states with Republican senators. Two are nominated for seats in Texas, and the others in Nebraska, Utah and Wyoming.

The five nominees have resumes as magistrate judges, prosecutors and military service members. As Bloomberg Law reports, these are “the kind of backgrounds preferred by Republicans” and are part of the administration’s effort to tackle vacancies in states with GOP senators.

Sens. John Cornyn and Ted Cruz expressed support for the Texas nominees. “With decades of experience in Texas courtrooms, Judge Leon Schydlower and Ernest Gonzalez have the legal acumen and institutional knowledge required to excel on the federal bench,” Cornyn said in a joint statement.

President Biden could, in theory at least, still match Trump’s four-year total. But that depends on several things: First, the Senate Judiciary Committee would have to speed up hearings, as well as the full floor teeing up more nominees for confirmation votes. Also, it remains to be seen how many vacancies open up for Biden in the next few months. He has approximately 20 fewer open slots compared to Trump at this point.

The Supreme Court Coup: Radical Changes to America’s Courts Coming Soon?

2024 could also bring a renewed call to “regulate” the U.S. Supreme Court, or what’s better known as the Supreme Court Coup, a brazen political effort to turn the nation’s highest court into an extension of the party in power.

It’s a New Year, but expect the same old antics from some politicians, radical groups and judicial activists. With the election fast approaching, it would not be surprising to see them clamoring for more congressional “oversight” of the Justices.

Don’t forget that there’s legislation already in the pipeline to make this happen. The deceptively named “Supreme Court Ethics, Recusal, and Transparency Act of 2023” was approved in committee on a party-line vote last July.

Recall that last November, the U.S. Supreme Court adopted a formal code of conduct for the first time in its history, codifying in one document the standards the court has long held. All nine justices signed the policy.

That decision came after months of scrutiny, pressure and, as our experts explain, a fabricated scandal with some politicians claiming that some justices violated ethics standards.

Not surprisingly, the Court’s most vocal critics were not satisfied with the code formally adopted by the justices and said the Court needs even more oversight and accountability from Congress. The response to the Court’s efforts make clear what this is really about: One side trying to wrest control of the Supreme Court.

From the very beginning, First Liberty explained that Americans are witnessing a fabricated scandal. These attacks have largely been directed against Justice Clarence Thomas—the Court’s leading conservative and one of the foremost defenders of religious liberty—as well as other conservative members. But while the Left has kept up a steady stream of accusations against conservative-appointed justices, it has largely ignored similar activities by liberal-appointed justices.

Americans who cherish and value our nation’s judicial system should not be deceived.

Don’t be fooled by those who say this is about fixing a “broken” Court. It’s not. Any ethics code other than one adopted by the Supreme Court is just one piece of a larger plan to orchestrate a Supreme Court Coup.

If radicals on the Left get their way on this supposed “ethics” controversy, it won’t be long before we see a renewed push for other dangerous and constitutionally suspect proposals such as court-packing, judicial term limits or even ending the court’s power of judicial review.

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