Democrats Reach Milestone: 100 New District Courts

President Biden and the Democrats, largely hindered by the Republicans from executing their policy agenda, have transformed the Senate into a judicial confirmation factory that has just reached a major milestone in its drive to reshape the federal courts, by electing the 100th nominee for the district court since Mr Biden took office.

The pace of the effort has surpassed that of the Republicans when they pushed to reshape the courts during the administration of former President Donald J. Trump, leading the Biden administration ahead of 20 district court nominees at the same point in his term on the Trump team.

“These judges will affect America long after just about every senator is out of here,” said Senator Chuck Schumer, the New York Democrat and majority leader, who has long been interested in judicial confirmations. “It is extremely important. It’s a step-by-step process. It is difficult.”

Despite being delayed by absences and opposition from Republicans that some Biden nominees consider unacceptable, the Democrat-led Senate reached 100 last week by a 50-49 vote to confirm Natasha Merle for a seat in New York’s Eastern District. York. She was one of the newly confirmed judges with a civil rights background whose nominations were slow to reach the floor because of concerted Republican opposition.

While district court judges have previously often been confirmed on a ballot basis, the battle over the nominees’ ideological leanings means they are almost all forced to navigate two votes. And there is little margin for error given the 51-49 split in the Democratic-controlled Senate and occasional defections from the Democratic side by Senator Joe Manchin III of West Virginia. Both sides have placed great emphasis on filling vacancies given the increasing role federal courts play in setting policy and deciding on politically charged cultural issues.

Despite the judicial count, some progressives are still pushing for Senate Democrats to do more to try and emulate the affirmative successes of Mr. Trump and Senator Mitch McConnell, the Republican and minority leader from Kentucky.

Some are urging Democrats to forego the planned August recess and remain in session to confirm judges, as well as to be more aggressive in appointing and confirming district court judges in states with Republican senators. There are more than 40 job openings with no nominees and the potential for dozens more as eligible judges retire.

Without such a push, Mr Biden is in danger of falling behind his predecessor by the end of the year, they say.

“It’s been a good thing so far,” said Russ Feingold, a former Democratic senator from Wisconsin who now heads the American Constitution Society. “It would be a terrible shame not to continue that work in an aggressive manner for the next year and a half. We think the Senate should expand the calendar.”

Mr Feingold noted that some of the newest judges had to wait nearly two years for their nominations to be tabled and suggested Democrats were being overly cautious.

“It really underscores the need for the Senate to pick up its pace overall,” Mr Feingold said. “Waiting doesn’t help anyone.”

Despite pressure from the left, Senate Democrats are highly unlikely to cancel their recess in a rush to confirm more justices. They say it would probably be pointless, as some senators would choose not to attend and Republicans could create new procedural roadblocks.

Senator Richard J. Durbin, the Illinois Democrat who chairs the Judiciary Committee, dismissed Mr. Feingold’s criticism.

“He knows better,” Mr. Durbin said. “He was on the committee.”

Republicans note that Democrats are still lagging behind the Trump era when it comes to judges being appointed to appellate courts, with 35 so far for Mr Biden compared to 41 for Mr Trump, who also has two job openings in the Supreme Court could have fulfilled by this point in his tenure, while Mr Biden fulfilled one.

Republicans say the circuit courts — the level between the district courts, where trials are conducted, and the Supreme Court — have much more influence than the courts when it comes to settling issues of federal power and social policy. They also point out that Democrats benefited from a Republican-led rule change in 2019 that significantly reduced the Senate floor time it took to get confirmation from a district court nominee.

But Democrats say the importance of district court judges has recently been underscored by decisions at that level by Trump-nominated judges on issues such as Covid rules, abortion and even the former president’s own criminal case. They are eager to bench their nominees with backgrounds in civil rights and criminal defense.

“Trump has deployed so many terrible right-wing judges,” Mr. Schumer said. “The people in the Supreme Court are clear, but on most circuits it’s even worse.”

The great test for the White House and Senate Democrats will come when they run out of vacancies in states represented by Democratic senators and face the prospect of being unable to fill district court vacancies in states with Republican senators, who have a nominations can be killed by a “blue slip” following a senate tradition that gives senators a say in the selection of judges from their home state.

Democrats have made progress in finding consensus candidates with Republican senators, but things are moving slowly — and not all Republicans are willing to consider Biden administration candidates, meaning numerous job openings could remain unfilled by the end of 2024.

Progressive interest groups want Democrats to jettison the blue slips and associated veto power.

“We need to get rid of the blue slips instead of waiting to see what happens,” Mr. Feingold said. “Maybe it’s too late.”

But Democrats said the move could spark a procedural war that would slow down the nomination process. They note that there are now another two dozen nominees in the pipeline and say they will review next steps once those people are confirmed. In total, Mr. Biden has installed 136 judges, compared to 123 for Mr. Trump at present, although Mr. Trump finished his third year with 187 confirmations and his term with 234, according to Mr. Feingold’s group.

“I’m really happy with the pace we’re going at,” said Mr. Schumer, noting that the Democrats were also able to score some legislative victories as they garnered nominations. “I’m sticking with it. Our goal is to surpass even what Trump did.”