Dem
51
GOP
49
Joe Biden and the Democratic-controlled Senate have been seating judges at a record pace. They were actually shooting for 100 in the first 2 years, and came up just short, at 97. There are another 31 nominees waiting in the pipeline and about a dozen seats that are vacant and don't even have a nominee yet. Why? Well, in part, the problem with those folks is that the Senate has to find the time to review their cases. There should be plenty of time for that now, though, since the Senate does not figure to be doing a lot of work on legislation, given the circus at the other end of the Capitol.
That said, the issue is not solely a lack of time. An even bigger problem, now that the "easy" seats have been filled, is the red states, particularly in the South. Readers are familiar with the tradition of "blue slips." Initially, the slips were used solely to document that the president had gotten the "advice and consent" of the appropriate senators, but over time they evolved into senatorial vetoes of judicial nominees. In effect, either senator from the state in which a judge would serve could torpedo that judge's nomination for any reason, or for no reason at all.
It has been reported that the blue slips were done away with by Senate Minority Leader Mitch McConnell (R-KY), the last time he was the majority leader. This is only partly correct. First, it wasn't actually McConnell who made the decision (though he certainly approved). It was then-Senate Judiciary Committee chair Chuck Grassley (R-IA). Second, the blue slips were only eliminated for appellate judges, with the reasoning being that they may serve in one state but they oversee multiple states. The blue slips remain in place for district judges, whose authority is much more delimited by the state in which they serve.
So, Biden's eight pending appellate nominations will probably get confirmed in short order. On the other hand, there are a few district-level nominees who could soon learn what it feels like to be Merrick Garland. There are also a bunch of vacant district-court seats in red states (especially Louisiana and Texas) where the President has not yet bothered to make a nomination, knowing that his picks will face a brick wall. Republicans have grown to rely on the redness of certain judicial circuits, especially the Fifth Circuit (Texas, Mississippi and Louisiana), as they do their venue shopping. So, Republican senators from those places are not going to be eager to approve any Biden district-level nominees, even reasonable ones.
Of course, now that they are in firm control of the Senate Judiciary Committee, the Democrats could get rid of all blue slips, and then could fill all those seats in Texas (and elsewhere) while the Ted Cruzes of the world fumed. But the problem there is that eventually the shoe will be on the other foot, and Republicans would start stuffing blue-state district-court seats with fire-breathing conservatives. After all, Democrats do their own fair share of venue shopping.
There are also a couple of other factors in this chess game. First, while venue shopping works for some cases, there generally has to be a somewhat reasonable basis for it. You can't get a case about drilling on Native Alaskan lands moved to Arkansas just 'cause. And what that means is that as the Biden administration wrestles with immigration policy over the next 2 years, the vast number of legal challenges will be heard in Southern courts. So, he could really use a few more non-conservative nominees.
The other factor in the chess game is that a dozen or so red-state judges will likely retire this year, and another dozen or so will likely retire next year. However, virtually all judges these days retire strategically. If an appointee of Ronald Reagan, or one of the Bushes, or Donald Trump thinks their seat will remain open until the next Republican administration, they are vastly more likely to stop down than if they think they'll be replaced by a Biden-nominated judge. So, if the Democrats do indeed decide to kill the blue slips for district-level judges, they might be well served to hold off until, say, early 2024. In effect, they would be tricking Republican judges into retiring. Seating a whole bunch of judges that year might also be useful to the blue team for campaign purposes.
This is a subject that will presumably get a lot of attention this year since, again, the Senate's to-do list is going to be a lot shorter with very little serious legislation for them to consider. (Z)