As the election looms, Biden struggles to match Trump’s judicial appointments.

Progressive supporters are concerned that Vice President Joe Biden may not be able to select as many justices as former President Donald Trump did during his four-year time in office. As a result, the White House is getting ready for the final opportunity that President Joe Biden has to leave his mark on the administration of justice.

Senate Democrats have pledged to continue their attention on approving Biden’s judicial candidates in 2024 and adding to the 166 individuals who have already been allowed to sit on the court. This is in response to the fact that a rematch between Biden and his Republican predecessor in the November 2024 election is becoming an increasingly realistic possibility.

After two years of matching or exceeding Trump’s speed of judicial nominations, Biden’s rate compared to his predecessor’s decreased in 2023. This was because Senate Republicans used their power and compelled the White House to negotiate with them over possible nominees.

A slower pace has put Biden’s ability to continue to appoint diverse judges to the bench at risk, according to Russ Feingold, a former senator for the Democratic Party in the United States and the leader of the American Constitution Society, which is a liberal organization. This is because an approaching election will determine whether Biden is re-elected to a second term and whether or not Democrats continue to maintain control of the Senate.

“Now we’re looking at a situation where if either the presidency switches or the Senate switches, most of this progress will probably be stopped or greatly stifled,” stated the president.

WHY IT IS IMPORTANT
Since the beginning of his term, Vice President Biden has made it a priority to fulfill his vow during the 2020 election campaign to increase the diversity of the judiciary. Most judges on the judiciary have been white men, typically former prosecutors or former partners in law firms.

According to the Leadership Conference on Civil and Human Rights, 108 of Biden’s confirmed candidates have been women, and two-thirds of the nominees are persons of color.

To offset the conservative effect of Trump’s 234 judicial nominees, he has regularly nominated human rights attorneys and public defenders to the bench. This is part of the Democratic Party’s effort to do this.

Among the notable individuals who were confirmed to the bench in 2023 were Julie Rikelman, a former litigator for abortion rights who is currently sitting on the 1st United States Circuit Court of Appeals in Boston, and Dale Ho, a voting rights campaigner who is currently serving as a federal judge in Manhattan.

“This Senate majority has prioritized confirming judges who add to the bench’s personal and professional diversity throughout the entire year, and we are going to continue doing so going into the new year,” Senate Majority Leader Chuck Schumer stated on the floor of the Senate on December 11.

However, although 69 judges were confirmed in 2023, this amount was lower than the number of enumerations during Trump’s third year in office, when 102 judges were confirmed.

Due to the absence of a sick committee member, Democratic Senator Dianne Feinstein, who passed away in September, the Senate Judiciary Committee had difficulty processing nominations for several months.

What it means for the year 2024
In the year 2024, Biden could be able to make up for that slowdown. He has announced thirty other nominations, which have not yet been confirmed. There are now 53 open positions on the federal bench waiting for a candidate, and many more openings are anticipated soon.

In other words, he could still, at least in principle, match Trump’s total over the past four years.

A custom in the Senate known as the “blue slip” allows senators to veto nominees from the states they disapprove of and hold seats available for a prospective Republican president. However, 22 of the vacancies are in states that have one or two senators who are Republicans.

Russell Wheeler, a visiting scholar at the Brookings Institution who monitors judicial nominations, stated that there are a lot of open positions. Still, the question remains whether or not he will be able to recommend candidates in conservative states. “That’s the big question.”

Progressive organizations have pushed Senator Dick Durbin, the current Democratic chairman of the Judiciary Committee from Illinois, to reject the “blue slip” precedent. These organizations believe that the “blue slip” custom has made it more difficult for Vice President Biden to nominate judges in conservative-leaning states and a significant portion of the South.

Biden’s inability to appoint judges in such states, according to Leah Litman, a professor at the University of Michigan Law School who also co-hosts the liberal legal podcast “Strict Scrutiny,” will ensure that Republican legislatures can “do whatever it is they want” without the fear that the courts will reject legislation that they implement.

“We have seen the effect that Republican blockades for district courts have had,” added the attorney.

She referred to the state of Texas, where President Trump successfully filled many openings with conservative judges who frequently supported challenges to Vice President Joe Biden’s policies. In the first instance, United States District Judge Matthew Kacsmaryk in Amarillo put the approval of the abortion drug mifepristone on hold. It is still accessible and awaiting review by the United States Supreme Court.

Durbin has recognized that “some judicial vacancies in states with Republican senators have languished for months on end.” Still, he has continued to uphold the tradition and has pushed Republicans to demonstrate that they can solve it with the White House.

In recent months, the White House has cited victories on that front, including the confirmation of district court judges in 2023 from the states of Indiana, Idaho, and Louisiana, as well as recent nominations still to be approved from the states of Florida, South Carolina, and Texas.

After 2023, Vice President Biden announced that he wanted to nominate five new judges in states that Republican senators represent. Two of these judges are located in Texas and have the backing of Senators John Cornyn and Ted Cruz.