Now that senators are headed home for election season, here's an update without how things stand judicially:
There are six current+future circuit court vacancies: a liberal vacancy in NJ open since last June, four liberal vacancies on confirmation of successor, and a conservative vacancy opening in DE in January (Manchin has more or less …
Now that senators are headed home for election season, here's an update without how things stand judicially:
There are six current+future circuit court vacancies: a liberal vacancy in NJ open since last June, four liberal vacancies on confirmation of successor, and a conservative vacancy opening in DE in January (Manchin has more or less retracted his 'nominees must have bipartisan support' ultimatum from earlier this year):
Julia Lipez (ME) should be confirmed without a fuss. Adeel Mangi (NJ) will need particularly favorable attendance to be confirmed as the first Muslim circuit judge, having garnered opposition from CCM, Rosen, and Manchin. Embry Kidd (FL), Ryan Park (NC), and Karla Campbell (TN) were nominated over the objection of their home state senators; I feel good about Kidd's chances and lean towards confirmation on the other two (Tillis has an active campaign against Park and Campbell being a labor lawyer makes Manchin support less likely). Biden's got three weeks to name a nominee for his home state circuit vacancy in order to get them confirmed this congress.
There are 23 blue state+DC district vacancies, and 19 of them have viable nominees. As with the aforementioned DE seat, Biden has three weeks to name nominees for two CA seats without nominees and seats in CA (Rebecca Kanter, dropped from her hearing because of something unearthed in her background) and NY (Sarah Netburn, voted down in committee for decision transferring trans woman to women's prison) with doomed nominees.
Mustafa Kasubhai (OR, Muslim, accusations of college Marxism), Sarah Russell (CT, advocated large-scale release of prisoners during pandemic), Amir Ali (DC, Muslim), Sparkle Sooknanan (DC, repped vulture capitalists over PR debts), Noel Wise (CA, may oppose gender-based bathrooms), and Anthony Brindisi (NY, co-sponsored trans rights legislation) would almost certainly be party-line votes, assuming they can retain Manchin and/or Sinema.
There are also 37 seats with a GOP blue slip that won't be filled this congress, but a President Harris would be able to fill most of them even without eliminating blue slips, at least with a Dem senate. Biden's filled 33 district seats with a GOP blue slip, including 28/36 that opened before the current congress.
One tax court nominee, two for the DC Court of Appeals, and 8 for the DC Superior Court are also pending; loss of the senate for a Harris administration could dictate a portion of the senate's time during the lame duck for key confirmations. Biden sits at 213 Article III confirmations, and could reach as high as 242, and while passing Trump's single-term record of 234 won't require good luck per se, it will require avoiding bad luck.
I closely follow "On the Bench", a weekly summary from The American Constitution Society. But they failed to post an update last Thursday, and have yet to do so this week.
Chuck Schumer has given Democratic incumbents an extra long break to campaign, which is surely wise given that Democrats are facing a very tough map this cycle. However, Schumer really needs to pick up the pace with confirmations. When the Senate returns on 12 November, there really is no excuse NOT to maximally use the Lame Duck Session to confirm as many Biden judges as possible. This will be particularly true if Republicans manage to flip the Senate!
(Also, the JUDGES act, adding 66 district judgeships over the next decade, has a strong chance of passing as part of the managers' amendment to the NDAA in the lame duck.)
GoUBears, below is my draft of a letter to Russ Feingold, who as president of the ACS writes excellent blogs about America’s judiciary and President Biden’s and Democrats’ fight to improve it. (But I haven’t found his email address.)
Perhaps you can share some insights on the questions I raise?
.
Re: SENATE CONFIRMATION OF JUDGES
There has been lots of focus on Blue Slips, but I believe it would be valuable with a column that highlights and explains Senate rules, and explores what Democrats can and cannot do to hasten the confirmation of judges. Russ Feingold’s last “In Brief” column was “Judges and Democracy” on 26 January. I believe it is time for a new blog entry.
Can Chairman Dick Durbin call extra committee hearings for nominated judges, and Executive Meetings to vote on them? Why have so many Executive Meetings been cancelled?
Why doesn’t Majority Leader Chuck Schumer file far more cloture motions on judges? Can Schumer file cloture motions on all judges who are awaiting floor votes? Why not at least file cloture motions on a handful of judges at the end of each week?
If multiple cloture motions are ripe, can Schumer choose which cloture and confirmation votes to bring up – taking advantage of known Senate absences? Does each specific vote need to be announced ahead of time? Does Minority Leader McConnell have to concur?
Can uncontroversial or less-controversial judges be voted on en bloc?
Is there any objective reason why Senate votes often take an hour or more?
Who are the worst culprits that cause such lengthy votes? Why not more discipline, at least amongst the Democratic caucus?
What power does Schumer have to shorten the voting time? The Senate does occasionally have very short votes (30-, 20-, even 10-minute votes). How is this enabled? Can the Majority Leader demand this for cloture and confirmation votes on judicial nominations?
Can Schumer just say: The Senate WILL hold these three confirmation votes before we adjourn this Thursday afternoon – so it is in everyone’s interest that we vote quickly.
What would it take for the Senate to introduce electronic voting.
How about actual roll-call votes where, if your name is called three times without response, then your vote is not registered?
Would it be an advantage for the full Democratic caucus to “sponsor” each of the judicial nominations? And then quickly enter their votes so the count is waiting only for Republicans?
Are there other Senate rules that slow down the pace of judicial confirmations? Are there rules that could be exploited to hasten the confirmations?
The answer to many of those questions boils down to the sheer amount of power held by the minority leader. So much of what the senate does is done by unanimous consent, and the minority leader essentially has as much power as the majority leader, except with regard to what comes to the floor. They could gum things up so badly, and the only reason they don't is the threat of retribution from their counterpart when their fortunes are reversed. Much should be modernized about the senate (electronic voting with correspondingly streamlined voting timelines, elimination of cloture votes at least when the threshold is 50), and having Manchin out of the caucus will make achieving that easier. We shall see in the coming years who the next rung of remaining traditionalists are.
The rules are 400-odd pages long and don't clarify much if you read them. I remember Martin Gold's Senate Procedure and Practice being enlightening, though it's remarkable how much they've jacked up the price for the current edition.
I see that it’s affordable used through Abe Books. Do you recommend it for a non-specialist? Would it address my questions any more concretely than you have already done?
Can't really say, it's been 15-plus years since I've read it and I'm not sure how much they change from one edition to the next. It's not an exciting read, but it did give me a fundamental understanding of the senate in a way that other works failed to.
Ossoff opposed Netburn, but I don't think he's said anything about it. I'd guess he was envisioning Cruz's attacks on his future opponent's ads ('voted for judge who sent 6'2'' child serial rapist man to women's prison').
The recommendations Butler and Padilla have sent to the WH for judicial vacancies seem to be pretty bad. I believe quite a few have failed background checks, and those that haven't have been difficult to confirm. Wise's very public and easily misconstrued stance (she wrote an article for Time) is pretty much in line with the others.
Now that senators are headed home for election season, here's an update without how things stand judicially:
There are six current+future circuit court vacancies: a liberal vacancy in NJ open since last June, four liberal vacancies on confirmation of successor, and a conservative vacancy opening in DE in January (Manchin has more or less retracted his 'nominees must have bipartisan support' ultimatum from earlier this year):
Julia Lipez (ME) should be confirmed without a fuss. Adeel Mangi (NJ) will need particularly favorable attendance to be confirmed as the first Muslim circuit judge, having garnered opposition from CCM, Rosen, and Manchin. Embry Kidd (FL), Ryan Park (NC), and Karla Campbell (TN) were nominated over the objection of their home state senators; I feel good about Kidd's chances and lean towards confirmation on the other two (Tillis has an active campaign against Park and Campbell being a labor lawyer makes Manchin support less likely). Biden's got three weeks to name a nominee for his home state circuit vacancy in order to get them confirmed this congress.
There are 23 blue state+DC district vacancies, and 19 of them have viable nominees. As with the aforementioned DE seat, Biden has three weeks to name nominees for two CA seats without nominees and seats in CA (Rebecca Kanter, dropped from her hearing because of something unearthed in her background) and NY (Sarah Netburn, voted down in committee for decision transferring trans woman to women's prison) with doomed nominees.
Mustafa Kasubhai (OR, Muslim, accusations of college Marxism), Sarah Russell (CT, advocated large-scale release of prisoners during pandemic), Amir Ali (DC, Muslim), Sparkle Sooknanan (DC, repped vulture capitalists over PR debts), Noel Wise (CA, may oppose gender-based bathrooms), and Anthony Brindisi (NY, co-sponsored trans rights legislation) would almost certainly be party-line votes, assuming they can retain Manchin and/or Sinema.
There are also 37 seats with a GOP blue slip that won't be filled this congress, but a President Harris would be able to fill most of them even without eliminating blue slips, at least with a Dem senate. Biden's filled 33 district seats with a GOP blue slip, including 28/36 that opened before the current congress.
One tax court nominee, two for the DC Court of Appeals, and 8 for the DC Superior Court are also pending; loss of the senate for a Harris administration could dictate a portion of the senate's time during the lame duck for key confirmations. Biden sits at 213 Article III confirmations, and could reach as high as 242, and while passing Trump's single-term record of 234 won't require good luck per se, it will require avoiding bad luck.
Great summary! I really appreciate this.
I closely follow "On the Bench", a weekly summary from The American Constitution Society. But they failed to post an update last Thursday, and have yet to do so this week.
https://www.acslaw.org/judicial-nominations/on-the-bench-tracking-president-bidens-judicial-nominations/
Chuck Schumer has given Democratic incumbents an extra long break to campaign, which is surely wise given that Democrats are facing a very tough map this cycle. However, Schumer really needs to pick up the pace with confirmations. When the Senate returns on 12 November, there really is no excuse NOT to maximally use the Lame Duck Session to confirm as many Biden judges as possible. This will be particularly true if Republicans manage to flip the Senate!
(Also, the JUDGES act, adding 66 district judgeships over the next decade, has a strong chance of passing as part of the managers' amendment to the NDAA in the lame duck.)
GoUBears, below is my draft of a letter to Russ Feingold, who as president of the ACS writes excellent blogs about America’s judiciary and President Biden’s and Democrats’ fight to improve it. (But I haven’t found his email address.)
Perhaps you can share some insights on the questions I raise?
.
Re: SENATE CONFIRMATION OF JUDGES
There has been lots of focus on Blue Slips, but I believe it would be valuable with a column that highlights and explains Senate rules, and explores what Democrats can and cannot do to hasten the confirmation of judges. Russ Feingold’s last “In Brief” column was “Judges and Democracy” on 26 January. I believe it is time for a new blog entry.
Can Chairman Dick Durbin call extra committee hearings for nominated judges, and Executive Meetings to vote on them? Why have so many Executive Meetings been cancelled?
Why doesn’t Majority Leader Chuck Schumer file far more cloture motions on judges? Can Schumer file cloture motions on all judges who are awaiting floor votes? Why not at least file cloture motions on a handful of judges at the end of each week?
If multiple cloture motions are ripe, can Schumer choose which cloture and confirmation votes to bring up – taking advantage of known Senate absences? Does each specific vote need to be announced ahead of time? Does Minority Leader McConnell have to concur?
Can uncontroversial or less-controversial judges be voted on en bloc?
SENATE CONFIRMATION OF JUDGES (continued)
Is there any objective reason why Senate votes often take an hour or more?
Who are the worst culprits that cause such lengthy votes? Why not more discipline, at least amongst the Democratic caucus?
What power does Schumer have to shorten the voting time? The Senate does occasionally have very short votes (30-, 20-, even 10-minute votes). How is this enabled? Can the Majority Leader demand this for cloture and confirmation votes on judicial nominations?
Can Schumer just say: The Senate WILL hold these three confirmation votes before we adjourn this Thursday afternoon – so it is in everyone’s interest that we vote quickly.
What would it take for the Senate to introduce electronic voting.
How about actual roll-call votes where, if your name is called three times without response, then your vote is not registered?
Would it be an advantage for the full Democratic caucus to “sponsor” each of the judicial nominations? And then quickly enter their votes so the count is waiting only for Republicans?
Are there other Senate rules that slow down the pace of judicial confirmations? Are there rules that could be exploited to hasten the confirmations?
The answer to many of those questions boils down to the sheer amount of power held by the minority leader. So much of what the senate does is done by unanimous consent, and the minority leader essentially has as much power as the majority leader, except with regard to what comes to the floor. They could gum things up so badly, and the only reason they don't is the threat of retribution from their counterpart when their fortunes are reversed. Much should be modernized about the senate (electronic voting with correspondingly streamlined voting timelines, elimination of cloture votes at least when the threshold is 50), and having Manchin out of the caucus will make achieving that easier. We shall see in the coming years who the next rung of remaining traditionalists are.
Interesting. I tried to find answers to some of my questions in the Senate Rules. Regrettably, I became none the wiser.
The rules are 400-odd pages long and don't clarify much if you read them. I remember Martin Gold's Senate Procedure and Practice being enlightening, though it's remarkable how much they've jacked up the price for the current edition.
I see that it’s affordable used through Abe Books. Do you recommend it for a non-specialist? Would it address my questions any more concretely than you have already done?
Can't really say, it's been 15-plus years since I've read it and I'm not sure how much they change from one edition to the next. It's not an exciting read, but it did give me a fundamental understanding of the senate in a way that other works failed to.
Incredible updates. Thank you.
"Sarah Netburn, voted down in committee for decision transferring trans woman to women's prison"
Huh? Which Democrat opposed her for that?
"Noel Wise (CA, may oppose gender-based bathrooms)"
Then why was he nominated?
Ossoff opposed Netburn, but I don't think he's said anything about it. I'd guess he was envisioning Cruz's attacks on his future opponent's ads ('voted for judge who sent 6'2'' child serial rapist man to women's prison').
The recommendations Butler and Padilla have sent to the WH for judicial vacancies seem to be pretty bad. I believe quite a few have failed background checks, and those that haven't have been difficult to confirm. Wise's very public and easily misconstrued stance (she wrote an article for Time) is pretty much in line with the others.
Fantastic work.
But, lord fo I detest the US Senate.