Confirming Lower Court Judges in the Senate Lame Duck Session

Guest post by Professor Carl Tobias.

In this election year, the divided parties are battling for the Senate majority and the presidency. One reason for the fight is that the party with the next upper chamber majority will greatly affect lower federal court judicial selection. For example, in Donald Trump’s presidency, Republicans enjoyed a majority, so he proffered and the Senate quickly appointed fifty-four exceptionally conservative, young, able circuit, and 174 district, judges. They confirmed jurists by violating or downplaying requirements and traditions which governed selection and produced accomplished, centrist nominees who enhanced ideological, experiential, ethnic, gender, and sexual orientation diversity. These phenomena undercut public respect for selection and court diversity. Moreover, in the 2020 lame duck session, Trump and the chamber majority appointed thirteen circuit and district judges, after President Joe Biden and Vice President Kamala Harris routed Trump. Notwithstanding which party captures a Senate majority or the presidency in November, the thin Democratic majority needs to promptly convene a lame duck session that confirms many nominees following November 5. Those parameters warrant review to detect how Biden/Harris and senators can appoint fine, mainstream nominees in this session.

Trump Administration Judicial Selection

In the 2016 campaign, Trump vowed to confirm astute young, ideologically conservative jurists and effectuated this promise by confirming exceptionally conservative Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett with fifty-plus analogous circuit, and 174 rather similar district, picks. Trump created records for appellate judges his initial year with a dozen selections, eighteen in 2018, and twenty the next year.

Trump and GOP chamber majorities appointed numerous conservative jurists by modifying or deemphasizing conventions and norms that had long supported approval of strong, mainstream judges. For instance, Trump rarely consulted senators from states with vacancies, even though they knew more about the candidates than executive officials. Trump also cabined ABA selection participation, although Presidents who served following Dwight Eisenhower, save George W. Bush plus Trump, relied on diligent ABA investigations and ratings when tapping choices, and President Obama even refused to send prospects with “not qualified” rankings. However, Trump mustered ten such nominees; three circuit, and five district, jurists earned appointment. Trump instituted negligible effort to recruit and confirm ethnic minorities; lesbian, gay, bisexual, transgender, or queer (LGBTQ) possibilities; women; and lawyers with valuable, less conventional experience, namely criminal defense counsel.

The GOP confined the “blue slip” idea that allowed many lawmakers from states with circuit openings to delay numerous Obama candidates, which is the most relevant precedent – with little persuasive support for the drastic change. Panel hearings lacked rigor, because the GOP did not await or seriously consider informative ABA data or encourage rigorous nominee probing in hearings and discussions before votes. These systems provided jurists, who resolved cases in ways that supported Trump’s initiatives or undercut Biden/Harris endeavors.

Biden Administration Judicial Selection

Across the 2020 campaign and once Biden and Harris captured election, they vowed to remedy Trump confirmations’ adverse consequences. On March 30, 2021, the White House announced the initial prospects : eleven fine, moderate, diverse nominees. They included the first Muslim district nominee and Black women for multiple court of appeals vacancies; two of the latter group were criminal defense attorneys, sharply contrasting with Trump’s record of zero Black appellate nominees. The Biden/Harris initial capable, diverse aspirants clearly exemplify seventy more 2021 picks and many whom he named later.

In late March 2021, the White House announced that it would quickly send prospects, but the nomination work began earlier. Over 2020, Biden and Harris had instituted a transition team which vetted myriad talented, diverse people. By summer, the group created selection procedures and identified numerous strong persons. With the Biden/Harris victory, the official process started. Most important, Dana Remus, the White House Counsel, asked lawmakers in jurisdictions with vacancies to suggest well qualified, mainstream, diverse candidates by inauguration day.

In April, Biden and Harris officially nominated the choices, who included two superb, mainstream Black women, D.C. District Judge Ketanji Brown Jackson for the D.C. Circuit, and experienced, highly regarded advocate Candace Jackson-Akiwumi for the Seventh Circuit. Jackson was a 2013 Obama appointee later considered for Justice Antonin Scalia’s opening to which he named D.C. Circuit Judge Merrick Garland; Biden and Harris tapped her for Justice Stephen Breyer’s 2022 vacancy. Jackson is an exceptional centrist jurist. Jackson-Akiwumi was a federal public defender for ten years after clerking for trial level and circuit judges and litigating with a respected law firm.

When Senator Dick Durbin became the Judiciary Committee Chair, he promised to comprehensively and fairly lead it and support rigorous member participation; Durbin also informed GOP senators that procedures resembling ones they employed to confirm Trump nominees would govern both parties. For instance, Durbin retained the GOP “circuit exception” to blue slips which then-Chair Senator Chuck Grassley (R-IA) had articulated with minimal substantiation.

The White House rapidly sent thorough paperwork while officially mustering nominees to the chamber in mid-April. The panel swiftly circulated questionnaires to nominees, who quickly returned full responses. Durbin began the hearing by stating that it was “historic,” as the nominees were people of color, affording much diversity. The court of appeals nominees provided comprehensive and lucid replies. Several GOP members emphasized the nominees’ criminal defense work, ostensibly attempting to undermine them. Illustrative was Senator Tom Cotton (AR), who questioned Jackson’s defense of a Guantanamo Bay prison “terrorist,” but she responded that the judge assigned her the case. When Senator John Cornyn (TX) posed questions about race’s effects on dispositions, Jackson claimed that she was independent and resolved each case on its particular law and facts.

Jackson-Akiwumi clearly addressed similar queries. For example, Grassley probed why she represented a “criminal” whom prosecutors alleged trafficked weapons; the nominee said her duty was to provide zealous, effective representation to which defendants have rights in the federal criminal justice system. When GOP senators pressed her about ethnicity’s importance for cases, she answered: “I don’t believe race will play a role in the type of judge I would be.”

Chair Durbin afforded members a week to posit Questions for the Record (QFRs) and the nominees similar time to respond. They quickly proffered thorough replies. In a later meeting, panel members discussed numbers of issues essential to court service and voted. Grassley exclaimed that Republicans must hold nominees to high “standards of constitutionalism, regardless of how impressive their credentials are [,but] unless a nominee can show me [allegiance] to the Constitution as originally understood, [the pick] should not be confirmed.” Grassley also voiced concerns regarding Jackson-Akiwumi’s “commitment to applying Seventh Circuit [and] Supreme Court precedents on the Second Amendment [the nominee’s then-current ideas] on Roe v. Wade, [and certain] other aspects of her federal defender cases,” but the prospect responded that she must dutifully follow each applicable precedent.

Because the nominees were superb candidates who fully and carefully answered plentiful complex queries, they merited strong reports. Nonetheless, merely two Republicans voted for Jackson and one favored Jackson-Akiwumi, even as considerably more supported district picks Neals, Quraishi, and Rodriguez. Thus, Durbin swiftly moved the nominees to the floor.

Majority Leader Chuck Schumer (NY) promptly assembled confirmation debates and ballots for the well qualified, diverse nominees, but the GOP rejected unanimous consent that would have allowed voice votes on any. Thus, Schumer pursued cloture which ends debate when a Senate majority agrees; he then promptly conducted robust floor debates and the nominees smoothly captured appointment.

Consequences Of Biden/Harris And Trump Judicial Selection

Biden/Harris and the Senate majority honored constitutional duties by appointing two mainstream, diverse circuit nominees and eleven other analogous judges the initial year plus 200 more later. The White House consults responsive home state lawmakers who analyze capable, moderate persons and suggest them; it carefully reviews and nominates candidates, and the Senate completely and fairly considers, evaluates, and confirms them. For instance, Biden/Harris and the chamber appointed circuit jurists who improve experiential, ideological, ethnic, gender, and sexual orientation diversity by prioritizing vacancies and cultivating legislators.

Trump and Republican chamber majorities in the 115th and 116th Congress broke records for appointing conservative appellate judges, who comprise practically a third of the active federal bench; they can serve for years and have already issued troubling decisions, which (1) facilitated many Trump endeavors that he premised on insubstantial legal support or (2) erode Biden/Harris initiatives to positively move the nation. Trump and GOP chamber majorities downplayed “blue” state district open positions and emergency vacancies which remained large and diverse appointees whose number significantly plummeted.

The circuits address one current opening, five active judges will become senior jurists pending their successors’ confirmation, while one vacancy lacks a nominee. Democrats possess a thin Senate majority and the presidency; they could lose each in the November elections. Thus, the last segment affords concepts that Biden, Harris, and the chamber might rigorously institute to seat numerous present talented, moderate, diverse nominees who rapidly earn approval in Congress’ lame duck session which begins after the elections. This holds critical importance for Biden/Harris and the federal courts, because they must appoint nineteen more nominees to eclipse Trump’s 231 confirmees, which honors the administration’s vow that it would counter the adverse impacts of Trump court appointments.

Suggestions Respecting The Lame Duck Session

A. The Confirmation Process and the Senate Calendar

Time constraints appear crucial. Election day is rather late; this means the lame duck session will begin the following week. Thanksgiving Recess starts promptly after the session begins on November 12, and holiday recesses will eliminate December’s last week. These scheduling practicalities yield eighteen work days regarding the session, if lawmakers assemble on Monday, while departing on Thursday, evenings. This short period mandates nuanced flexibility and strategic prioritization. Unless the chamber works quickly, it will lack time for nominations; robust evaluations, hearings, discussions, and votes; plus rigorous confirmation debates and ballots. Thus, the majority should contemplate prioritizing numerous phenomena, such as circuit, rather than district, empty posts; state representation by Democratic versus GOP politicians; and confirmations more than nominations.

 Biden/Harris may assertively keep nominating aspirants simultaneously with candidate announcements, while providing thorough, fast candidate reviews. They might also want to consider proposing additional strong choices, as the nominees would enhance flexibility this year, if merited, while permitting the White House and senators to expeditiously implement the nascent 2025 confirmation process. However, the relatively plentiful centrist, diverse nominees whom Biden/Harris tendered over summer 2024 intimate that they may name few more, and the almost complete dearth of nominees since late August plainly suggests that few more are coming. Thus, I make this assumption here and emphasize nominees who concluded hearings.

The majority should provide numerous realistic goals, and the committee and the chamber might intentionally streamline and expedite the confirmation process, appreciating that undue restrictions can diminish the appointments which result over the narrow time frame that the lame duck session imposes. The confirmation process’s salient pressure points, therefore, merit examination to ascertain whether temporal savings can be practically realized and, if so, exactly how. The committee personnel, Durbin, and GOP Ranking Member Senator Lindsey Graham (SC) could, and likely would, cooperate during the entire process to speed review.

 Judiciary Committee business meetings where politicians discuss nominee qualifications and vote are the initial relevant phase of the lame duck session. Because many nominees lack controversy and comparatively few panel members rigorously deliberate, they should need little time. The rule that allows the minority party to delay with no cogent reason discussions and ballots for a week could merit reevaluation, as this notion seems wasteful. Once the panel moves nominees to the floor, the Senate Calendar affords the caucus leader and the majority great discretion. They can assess chamber rules and conventions and consider alteration. One could be the thirty hours allotted for post-cloture appellate nominee debates, few of which senators use. The majority can amend this proviso, because the GOP reduced a similar district nominee provision to two hours. The majority could also scrutinize reviving traditions that duly confirmed nominee packages awaiting confirmation around recesses. Were the minority to oppose these notions, Democrats may examine the “vote-a-rama” concept for nominees on the floor during the upcoming holiday season which resembles the procedure that Democrats robustly deployed in the 2021 holiday session and on which the GOP relied to quickly confirm many Trump nominees.

B. Other Particular Suggestions

Biden/Harris and the Senate majority have effectively participated in, and should continue, dutiful advance planning regarding the lame duck session. The President and senators must concomitantly enunciate lucid, robust goals. Biden also designated, and keeps setting and respecting, numerous important priorities. Most critical are confirming accomplished, diverse nominees for circuit open slots and emergencies. Ryan Park, the well qualified, mainstream Fourth Circuit nominee, illustrates effectively the first idea. Biden marshaled the North Carolina Solicitor General on July 3, yet politicians from the home state essentially asserted that Biden inadequately consulted them and opposed Park. Because he masterfully responded to hearing questions, the nominee should earn prompt confirmation. The administration has prioritized appellate tribunals with several or protracted openings; thus, merely one lacks a nominee. It should correspondingly stress circuit court confirmations during the lame duck session, focusing on nominees with unimpeachable credentials and bipartisan appeal such as Park and Embry Kidd for the Eleventh Circuit. Another valuable illustration was Ninth Circuit Judge Roopali Desai whom Arizona Democratic Senator Mark Kelly and former Democratic, and now Independent, Senator Kyrsten Sinema astutely proposed to Biden and Harris and they wisely nominated in 2022. Desai felicitously earned the quickest confirmation since the administration of President Bill Clinton, thanks mainly to Sinema’s herculean efforts.

Democrats must also stress confirmation of numerous well qualified, mainstream district court nominees. One important example is District of Arizona nominee Sharad Desai whom Sinema and Kelly proposed to Biden/Harris and they nominated in summer 2024. The September 25 timing of Sharad Desai’s panel hearing meant that the chamber recessed to campaign before senators proffered him a committee discussion and ballot. Thus, the Senate required the nominee to await this discussion and vote when the members reconvene for a lame duck session, which commences on November 12 and ends on December 20. The committee should then quickly and rigorously canvass Desai’s attributes and report the experienced, moderate nominee. This meeting, discussion, and vote could proceed on November 21, because the committee nearly always schedules Executive Business Meetings on Thursdays. Should the panel report Desai, the Senate must then promptly activate a cloture ballot, a robust debate, and a confirmation vote.

Earlier in 2024, Senator Kelly and Sinema had recommended very experienced, moderate prospects Krissa Lanham and Angela Martinez whom the Biden/Harris Administration nominated on February 21. They earned an uneventful March 20 panel hearing in which both proffered rather clear and thorough answers to questions specifically from GOP members. The committee then discussed each nominee, reporting them on identical 13-8 bipartisan votesduring April. Lanham and Martinez concomitantly won ample cloture ballots and powerful confirmation votes the next month.

In the lame duck session, each party must cooperate to improve bipartisan selection by reimagining and duly changing negative behavior. For example, Republicans provoke abundant, unwarranted delay by requiring cloture on many Biden nominees. Most GOP politicians also vote in lock step, but numerous members eschew this for numbers of district prospects and could similarly address circuit nominees. Illustrative are efforts by Graham, who favors many Biden/Harris court of appeals nominees in committee and for confirmation, and multiple Republican legislators, who cast efficacious panel and confirmation ballots for the initial three district nominees.

Conclusion

The Biden/Harris Administration made significant progress when effectuating its solemn promise to stop or reduce the detrimental effects, which Trump’s appellate court and district court judges imposed, by efficaciously appointing competent, mainstream aspirants. The remarkable forty-four appeals court, and 166 district court, jurists whom Biden/Harris confirmed over nearly four years illuminate this salient pledge. However, the recent elections might threaten this impressive confirmation record. Therefore, Biden, Harris, and senators need to dutifully prepare for a rigorous lame duck session that will promptly confirm additional excellent, centrist judges.