Dem
51
GOP
49
With a split Congress, not much gets done except confirming judges, because the House is not in the loop on that and judicial confirmations can't be filibustered. Joe Biden is slowly making progress on that score and now his 100th U.S. district judge has been confirmed. At this point in his term, Donald Trump had only gotten 80 district judges through the Senate. However, appeals court judges are even more important, and so far Biden has gotten 35 of them approved to Trump's 40 at this point. More important still are Supreme Court justices, and there Trump's lead at this point is 2-1.
While judges can't be filibustered, the minority can stall using various tactics and the Republicans are using them to the max. But part of the problem lies with Biden. There are currently 40 vacancies for which Biden hasn't made a nomination. If there is no nominee, the Senate can hardly start the confirmation process. Part of the problem is that the Republicans have optimized appointing judges by adopting one-stop shopping. A Republican president just picks up the phone and calls the president of the Federalist Society, who then tells him who to nominate. The president then thanks him and submits the name. It is very efficient. The Democrats don't have anything like that set up. Maybe they need to. There is a left-leaning body called the American Constitution Society, of which former Wisconsin senator Russ Feingold is president, but it doesn't work quite like the Federalist Society.
Another problem, even when there is a nominee, is the "blue-slip problem." Traditionally, when a judge is nominated, the senators from the state where the judge will work are given blue slips of paper. If they return the blue slips to the chairman of the Judiciary Committee, the hearings can go forward. If they don't, the nomination is effectively killed. But this is just a Senate tradition. It is not even a Senate rule, let alone a law or provision in the Constitution. So far, Judiciary Chairman Dick Durbin (D-IL) has prioritized judges who will work in states with two Democratic senators. But sooner or later—and probably sooner—the pipeline will run dry and Durbin will have to start considering judges who will work in red states. Many Democrats want him to abandon the blue-slip tradition and just hold hearings for every judge, no matter what the state's senators want. Feingold, in particular, is scolding Durbin for keeping the tradition alive. But if Durbin lets the Republicans block most future nominees, Biden will never reach the 234 mark, as Trump did in his one term.
Also on the judicial front, many Democrats are worried that if a Republican is elected president in 2024, Justices Clarence Thomas (75) and Samuel Alito (72) will hang up their robes during his first term. Then the president could call Federalist Society President Leonard Leo and ask: "Got anybody under 45 I could use?" Of course, if Trump is elected president, he could cut out the middle man and just nominate Judge Aileen Cannon directly. If Biden is reelected, probably neither justice would resign under any conditions, but sometimes Nature takes command. Thomas likely has some provision in a living will requesting to be kept technically alive on machines until his conservative activist wife, Ginni (66), agrees to turning them off, something she would never do with a Democratic president. (V)