How to pick up the pace on confirming liberal judges

After setting and maintaining an impressive pace of judicial nominations and confirmations during President Biden’s first two years, the White House and the Senate have slowed down in recent months. As a result, Biden is on track to fall behind former President Trump’s pace in confirmations by the end of the year.

Through the end of August of his third year, Trump had 146 confirmed judges. Biden is currently at 138 (as of this writing). More daunting, Trump had 187 judges confirmed by the end of his third year. If the Senate were to confirm all of Biden's announced judicial nominations, it would only bring his total to 167.

This White House and Senate have prided themselves on being ahead of the previous administration on judicial confirmations. Exceeding 146 confirmations by the end of this summer and 187 by the end of the year is still doable, but only if they pick up the pace of both nominations and confirmations.

To have a chance of even tying the previous administration’s pace of confirmations at the end of the third year, the Biden administration must announce at least 20 more judicial nominees this year. To give the Senate enough time to confirm these nominees, the White House realistically needs to announce them by the end of October at the latest.

For its part, the Senate should expedite the confirmation of every pending nominee to make way for these 20 additional nominees. This Senate has confirmed as many as 12 judges in a week and on two separate occasions eight judges in a week. So we know what is possible when the Senate prioritizes confirmations.

The Senate majority has the advantage of controlling the calendar. Majority Leader Chuck Schumer (R-N.Y.) decides when the chamber is in session and for how long, when cloture is filed on nominees, and when confirmation votes are held. The Senate is currently scheduled to have only 16 more work weeks before the end of 2023. With that existing calendar, the body would need to confirm, on average, more than three nominees per work week. This is doable for a determined Senate, particularly if Schumer expands the calendar.

He should start by scrapping the Senate’s August recess. That would create four more weeks to hold confirmation hearings and votes. Scrapping this August recess is also much easier than scrapping it next year, when many Senators will need to be in their home states campaigning for reelection. This is not without precedent, as Sen. Mitch McConnell (R-Ky.) canceled the August recess in 2018 in order to (you guessed it) confirm judges.

The Senate majority can also give itself more time during the week. The typical Senate work week is Tuesday through Thursday, but it is routine to expand the calendar for priorities or urgent matters. Judicial confirmations qualify as both.

Two more ways to manifest time are for the Senate to reduce post-cloture debate time for circuit court nominees from 30 hours to 2 hours, akin to that of district court nominees, and to enable multiple nominees to be considered simultaneously. These procedural reforms will expedite confirmations and enable more to be accomplished in less time.

The other obstacle in the way is obstruction and the threat of obstruction, including by senators refusing to return “blue slips” on district court nominees for their state. The Senate needs to scrap what remains of this tradition after the previous GOP majority did away with the practice for circuit court nominees. If the Senate insists on clinging to this tradition (which a future GOP majority would readily end if it served its interests), the White House needs to take the risk that Republican senators will withhold blue slips, and nominate candidates for all federal vacancies.

The longer we go without nominees for southern and midwestern vacancies, the more Republicans win without even trying. The administration should dare the GOP to withhold blue slips on dozens of diverse, qualified candidates. And if they do, Senate Judiciary Chairman Dick Durbin (D-Ill.) will have a slam dunk case for eliminating blue slips altogether — or he and the majority will have to explain to voters why they are prioritizing the remnants of a tradition over the confirmation of diverse, qualified judges.

The White House and Senate are sending the message that judicial confirmations are a “nice-to-have” and not a “need-to-have.” In a country increasingly being shaped by the courts, this is not the right attitude to take. The Biden administration and the Senate need to treat judicial confirmations like the necessity they are.

Russ Feingold is president of the American Constitution Society and previously served 18 years as a U.S. senator from Wisconsin.