The Senate has now approved Judge Ketanji Jackson’s appointment to the Supreme Court. Now, the Biden White House will turn its attention to 100+ vacancies at lower federal courts.
Tuesday saw the White House announce its first nominees to lower courts for more than two years: three nominees for district court and two nominees for circuit court. Lower court nominations were put off as attention was focused solely on the Supreme Court. However, if the White House wants to make a big impact on the federal judiciary it will have the ability to move at a faster pace (as discussed by me here).
Most of the pending and current circuit court vacancies do not have judicial nominations. Some of these openings are known for many months. Because this year is election-year, Senate Republicans won’t cooperate to fill many of the seats. Therefore, Senate Democrats will need to dedicate substantial effort and time to make sure nominees are moved through the process.
White House could have to choose whether or not to look for more moderate “consensus candidates” from states where there are Republican Senators. If so, it would be easier to get the process through quicker. If they’re willing to put in the effort and time, Senate Democrats are able to get every nominee through for any vacant position. Senate Democrats are able to present a nominee to the Senate Judiciary Committee even if they cannot agree on the nomination. This is however more difficult than moving someone with minimal bipartisan support. While an accommodationist route could allow for more seat filling, it might not be the best option. This may also compromise the Biden Administration’s attempts to name progressive stalwarts of the federal bench as well as discredit parts of his base. The White House will decide which strategy it follows in the next weeks.