Last week, the Senate reconvened a lame duck session that began on Nov. 12 and should conclude Dec. 20. President Joe Biden, Majority Leader Chuck Schumer, D-N.Y., and Judiciary Committee Chair Richard Durbin, D-Ill., have pledged to confirm the accomplished, centrist nominees Biden selected before former President Donald Trump secured the 2024 election. Here is how Democrats can respect their promise.
On Nov. 21, when the Senate departed for Thanksgiving recess, it had appointed one justice, 45 circuit and 173 district court jurists. They are well qualified, mainstream and diverse in terms of experience, ideology, ethnicity, gender and sexual orientation. Then, four circuit nominees awaited confirmation votes, and 12 more district nominees, including Northern District of Georgia nominee Tiffany Johnson, waited for confirmation ballots. Two other trial-level nominees awaited committee reports and confirmation votes. In his first term, Trump appointed three highly conservative justices, 54 analogous circuit and 174 relatively similar district judges. In the Republican-called lame duck session after Biden clearly won the presidency, Trump appointed 13 circuit and district jurists. Thus, to keep adding balance, senators must confirm Biden nominees.
Credit: Handout
Credit: Handout
When he and the upper chamber opened the lame-duck session, they remained on track to eclipse Trump’s judges. The initial week, senators easily confirmed April Perry, who had long served as assistant U.S. Attorney, to Illinois’ Northern District, and Jonathan Hawley, who practiced tort law for years, to Illinois’ Central District. The Senate panel set a ballot for Ryan Park, the well qualified, mainstream North Carolina solicitor general, Biden’s masterful Fourth Circuit nominee, approving him 11-10.
In the session’s next week, Republicans began to obstruct more nominees by demanding roll-call ballots, which traditionally proceeded with unanimous consent. This meant numerous votes delayed recessing until midnight. That Tuesday, the Senate appointed two district nominees Republicans characterized as controversial. Mustafa Kasubhai was a U.S. Oregon District magistrate judge for six years and a Lane County Circuit jurist for 11 and the nation’s initial Muslim federal judge. Sarah Russell was the Civil Justice Clinic director and a professor in the Quinnipiac Law School over many years following assistant federal public defender service.
On Wednesday of that week, the chamber appointed a pair of nominees whom Republican senators deemed more controversial. One is Rebecca Pennell, who served on the Washington Court of Appeals for eight years and was a federal defender for 16. The other is Amir Ali, who recently was Criminal Justice Appellate Clinic director for Harvard Law School and the MacArthur Justice Center executive director. The panel also held a smooth hearing for two recent California district nominees. Ben Cheeks is a U.S. magistrate judge and was a criminal defense practitioner. Serena Murillo has been a prominent Los Angeles County Superior Court judge for 10 years and was a California prosecutor before this service.
On Thursday of that week, each party’s leaders reached a “deal” on selection. The GOP vowed to refrain from blocking district nominees if Democrats halted attempts to confirm four appellate prospects. The majority leader’s staffer said, “The trade was four circuit nominees — all lacking the votes to get confirmed — for more than triple the number of additional [district court] judges.” However, many people who supported Biden’s appointments efforts roundly castigated the deal. They argued it was unfair to the circuit nominees who had endured grueling, inappropriate and trick questions from Republican committee members, and waited protracted times for confirmation votes they had earned. Some observers also contended the agreement was counterproductive, as the circuit and district nominees could all have won confirmation.
Regardless of whether the Senate leaders or the deal’s critics have better arguments, the conundrum has a felicitous remedy that satisfies the deal’s apparent requirements. Biden and Democrats might promptly retract the four contested appellate nominations, substitute other candidates and marshal confirmation of them and the trial level nominees by the session’s end. The quickest course of action is elevating new candidates who are rigorous, highly qualified Trump or Biden district confirmees to the four appellate vacancies. For instance, Biden might easily name his Maine District confirmee Stacey Neumann or Trump appointee Lance Walker to Maine’s First Circuit opening; his plentiful New Jersey District appointees for that state’s Third Circuit vacancy; Trump North Carolina trial level appointees Kenneth Bell or Richard Myers to its Fourth Circuit opening; and Trump Tennessee district court appointees for Tennessee’s Sixth Circuit vacancy. The judiciary panel also can readily expedite nominee hearings, discussions and votes, while Schumer could rapidly conduct floor debates and cloture and confirmation ballots.
This action is crucial to ensuring appropriate political balance in federal courts. Biden solemnly pledged to efficaciously restore that, and he honored this vow by suggesting and confirming numerous well-qualified, mainstream, diverse circuit and trial level nominees. By robustly pressing to confirm many nominees in the lame-duck session’s remainder, Biden and senators can fill myriad empty posts with strong jurists who promptly, inexpensively and fairly decide cases.
Carl Tobias is the University of Richmond Williams Chair in Law.
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