Ketanji Brown Jackson notably became the first Black woman to join the U.S. Supreme Court when she was appointed by President Biden. This appointment is particularly significant as it doubles the total number of Black women judges serving on the highest courts in the country compared to previous times. Additionally, 11 Black women have been confirmed as appellate judges, which is more than any other Democratic president. It is worth noting that about 46 percent of the president’s confirmed nominees are women of color, and approximately 95 percent are women.
46 candidates are still awaiting confirmation as the current legislative session draws to a close. Among these candidates, there are 18 women who belong to ethnic minorities. Progressive organizations have urged Senate Democrats to expedite the confirmation process in the past few months. Nevertheless, due to the limited time remaining in the legislative session and other pressing matters to address, it is probable that some of Biden’s remaining nominees will not be confirmed. This would require him to either renominate them or propose new candidates.
Despite the extended control of Republicans in the Senate during former President Donald Trump’s administration, progressive groups told them that the outcome of the midterm elections allowed Democrats to maintain a majority in the Senate, thus enabling them to continue shaping the federal bench for years to come.
Kimberly Humphrey, the legal director for federal courts at Alliance for Justice, a progressive judicial advocacy group, remarked, “If we aspire to reach that figure, we still have a considerable distance to cover. During Trump’s presidency, he had appointed more than 200 judges by the time he left office.”
READ MORE: The Supreme Court is now more varied than ever, while the attorneys who present arguments before it are less diverse.
During a span of more than eight years, both Presidents Barack Obama and George W. Bush individually selected nearly 330 federal judges, with approximately 24 percent of them being women. By the conclusion of his four-year term, President Trump successfully appointed a total of 234 confirmed judges. However, the nomination and confirmation process under the Trump administration gained momentum in its final two years. In comparison, President Biden is surpassing Trump’s 85 judicial confirmations at this stage in their respective terms.
Christopher Kang, co-founder and main legal advisor of the judicial advocacy organization Demand Justice, expressed, “since 1980, President Biden has the chance to emulate that accomplishment by prioritizing diversity in the judiciary: appointing the highest number of women, people of color, LGBTQ judges, and those with a history of representing individuals rather than corporations.” It is worth noting that President Trump established a new precedent during his term by appointing the largest number of circuit judges and district judges.
In his first two years in office, Biden has commendably noted that people who have worked in private law firms, including those who have worked in areas like women’s rights, climate justice, labor law, and diversity, could bring even more professional diversity to the federal bench. Instead of solely focusing on professional experience, Biden has nominated people with underrepresented backgrounds in terms of gender, race, and professional backgrounds, which has been praised by public defenders like Humphrey.
Looking ahead to the next Congress, Democrats do not face any clear hurdles that could obstruct their efforts to confirm more judges.
On Friday, Senator Kyrsten Sinema of Arizona announced plans to break from the Democratic Party and become an Independent prior to the December 6 runoff race, which could potentially lead to some flexibility in extending their seat even if there is disagreement over the event. This announcement came after Democrats had 51 senators with the re-election of Raphael Warnock in his runoff race.
Sinema’s transition to Independent is expected to result in her retaining a comparable voting presence in the chamber, despite her consistent backing of Biden’s judicial nominees and her role as a pivotal and occasionally unpredictable vote in the evenly divided Senate. Consequently, she will wield considerable influence during this session.
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The process of appointing and nominating judges to the courts should be understood by the government because it is mandated by the Constitution. According to Amy Steigerwalt, an associate professor and chair of the political science department at Georgia State University, people should become familiar with the actual requirements of the judicial confirmation process. It is a little-known fact that confirmation hearings are not necessarily required to go through, but the President shall appoint and nominate individuals with the Senate’s consent and advice, as stated in the Constitution. Despite this, President Biden will need to renominate nominees who were not confirmed this year.
“They are capable of doing that,” Steigerwalt stated, “we perceive it as satisfactory and we have already evaluated this nominee in committee, essentially, to express their desire. The Senate has established its own internal procedure.”
Progressives advocating for increased diversity on the federal bench suggested that modifying certain informal procedures for judicial confirmations could accelerate the Senate’s capacity to advance nominees.
In a July article for Slate, Kang encouraged Senate Democrats to be more aggressive in their approach to the judicial confirmation process, including bypassing some Senate traditions to prolong the time for leaving unfilled judicial vacancies, as one example is the party president’s senators who recommend district court judges from their home state but do not always meet the set deadlines for these recommendations.
The committee’s commitment to this has fluctuated, depending on the chairman. As a courtesy, if a nominee does not receive support from a senator in their home state, regardless of their political affiliation, that candidate may not progress in the Senate Judiciary Committee. Another long-standing tradition is that any senator has the power to essentially reject a federal judicial nominee from their home state.
Kang was informed by the 19th that “the ability of President Biden to reshape courts everywhere in the country, where Democratic senators are just not, is going to be one of the big questions in terms of his terms. I think this courtesy has to stop.”
According to the Administrative Office of the U.S. Courts, there are currently 83 vacancies across federal courts and 46 pending nominees. Kang and Humphrey expressed the urgency to fill these prolonged court vacancies, as it hampers the court’s ability to move cases through efficiently. They are looking beyond Trump’s appointments to match the number needed.
Humphrey stated, “due to the accumulation of cases in judicial buildings, it implies that our citizens are being deprived of the necessary justice.” “That’s a crucial element of the effort to ensure that we are not, you know, enabling a smooth progression as it should be, in my opinion,” Humphrey expressed. “And by concentrating and expediting the process of filling these vacant positions, we are assisting all our communities nationwide.”