No time to waste on picking judges

In his first year in office, President Joe Biden saw 41 Article III judges confirmed to federal courts, more than any president since Ronald Reagan. This was a laudable record for Biden and Senate Democrats, who have navigated a 50-50 committee and Senate to fill vacancies with experienced candidates from a diverse range of backgrounds. Since then, the Senate has confirmed 32 more nominees, as well as new Supreme Court Justice Ketanji Brown Jackson. Ahead of a close midterm election, Democrats should not allow momentum to falter.

Last week, the White House announced 15 nominations, more than in any other week in his presidency. Yet there are just 46 pending nominees and nearly 120 current and future vacancies on circuit and district courts.

During the Trump administration, the federal judiciary was transformed at breakneck speed. It is easy to focus on the former president’s impact on the Supreme Court, but that is only part of the story. In a single term, Trump had 231 nominees confirmed to federal judgeships, including 54 on appellate courts; in eight years, Barack Obama had 320 confirmed, with 55 appellate appointments.

Biden now has the chance to make his own lasting impact on the courts. But with control of the Senate up for grabs in November, the window is fading fast. Of the list of current nominees, 17 are waiting on floor votes, seven are waiting to be reported out of committee and 22 are waiting on hearings. Sen. Richard Durbin, D-Ill., chairman of the Judiciary Committee, and Senate Majority Leader Charles Schumer, D-N.Y., should move hearings and floor votes along as expeditiously as possible, while the White House must continue to accelerate nominations.

Progressive groups have called for scrapping part of the Senate’s August recess and suspending the “blue slip” process that allows home-state senators to submit favorable or unfavorable opinions of nominees. “Blue slips” have at times been misused to delay or derail nominations. But they offer a check against unpalatable nominees, and Senate Democrats should not allow another institutional norm to be abandoned. Canceling a portion of the August recess, on the other hand, would help clear some of the backlog, and is something Schumer should consider.

If Republicans take back the Senate in the midterms, Senate Minority Leader Mitch McConnell, R-Ky., will once again have authority over the confirmation process. His obstruction in Obama’s final term was key to the conservative makeover of the courts. McConnell should remember that — while the Senate has a responsibility to “advise and consent” — the U.S. Constitution gives the president the power to appoint judges. Credible, qualified nominees should not be subject to arbitrary delays or political grandstanding.

Lifetime appointments to the federal judiciary — particularly to appellate courts, which have the final say on many cases — will have far-reaching implications for decades to come. The Biden administration and Senate Democrats should fill as many vacancies as they can with strong nominees in the coming months — or they could rue a wasted opportunity.