Democrats reached a major milestone on Friday, confirming that there are more judges under President Joe Biden than there were Republicans during President-elect Donald Trump’s first term. It deprives Trump of the opportunity to put a bigger conservative stamp on the judiciary — and Democrats will have the power to continue fighting next year.
Senate Democrats, despite a narrow majority, approved 235 of Biden’s judicial picks, eclipsing the 234 judicial nominations Trump received in his first term. Biden has now appointed a slate of judges representing about a quarter of the entire federal judiciary.
In a move that could further erode Trump’s legal impact even with a Republican majority in the Senate, Democrats are poised to pressure Republicans to maintain a practice that blocks approval of the two senators from a state required for lower-level spots on the federal bench.
Supreme Court Democrats who review judicial nominations, such as outgoing Chairman Dick Durbin of Illinois, have refused to drop the blue slip tradition for the past two years despite party pressure — and are now urging Republicans to do the same.
When asked if he plans to continue the practice, incoming Senate Judiciary Chairman Senator Chuck Grassley (R-Iowa) simply replied, “Yes.”
That’s a boon for the Democrats. Due to population size, there are more judicial vacancies in larger blue states such as California, New York and Illinois – states that require two Democratic signatures before the Trump administration can fill them. In addition, a deal that would have expanded the number of federal judges and given Republicans room to fill is on the verge of a Biden veto.
“There are many more district judges in Democratic states than in Republican states,” said Sen. Sheldon Whitehouse (D-R.I.), a senior member of the Judiciary Committee. “If we were to let the district court blue slip go, it would create a real structural problem in the long run, so Chairman Durbin has absolutely done the right thing to keep that in place.”
Democrats hope that filling the courts with less conservative choices will provide a first line of defense against the Trump administration’s policies as the party braces for the incoming president and other Republicans to push through a host of new policies , through executive orders and otherwise.
The court’s decisions could have critical implications for abortion rights, student loan forgiveness, climate change and more. Although cases may proceed to appellate courts and beyond, district courts typically have the first say on challenges to federal policy.
Even Republicans grudgingly acknowledge that Durbin has run an efficient and aggressive operation in filling vacancies over the past four years.
“Dick Durbin, unfortunately, has been very effective. He’s been very good. I wish he hadn’t been,” Sen. Josh Hawley (R-Mo.), a member of the Judiciary Committee, said in an interview. “He has run the committee very, very efficiently.”
Democrats have largely cleaned up the house: There are currently only 36 vacancies on the federal court bench and 11 future vacancies as judges announce planned retirements. By comparison, Trump started his first term in 2017 with a whopping 112 vacancies and 15 future vacancies.
Biden began his term with 49 current vacancies and five future vacancies on the federal bench.
Of course, Trump may have the most consistent last laugh at the Supreme Court. Justices Clarence Thomas and Samuel Alito – both in their 70s – are on the retirement list. Appointing replacements for one or both conservative justices would give Trump an opportunity to further cement his decades-long conservative stamp on the court. And they are not the only judges on the pension list; Progressive groups launched an unsuccessful pressure campaign after Trump pushed liberal Justice Sonia Sotomayor to step aside, fearing the 70-year-old could create another opening for Trump to tilt the court further to the right.
He has already been able to fill three vacancies during his first term, meaning that about half of the court would be appointed by him if one or both judges were to retire.
Plus, there are other big states that are seeing a lot of openings, like Texas and Florida, where Trump will have two Republican senators to sign off on his top picks.
“I can’t wait for President Trump to appoint even more judges — to me, that was one of his greatest legacies,” said Sen. John Cornyn (R-Texas), a senior member of the Judiciary Committee.
Trump could have come in with a slate additional This term has provided judicial openings, but it now seems unlikely. The Senate earlier this year unanimously approved a bill to add 66 district courts over the next three presidential terms, with proponents saying they wanted to pass it before the 2024 elections so that neither Republicans nor Democrats would know which ones party would immediately benefit from it. But Republicans in the House of Representatives waited until after the election to pass the proposal, and Biden has indicated he plans to veto it.
But another deal on judges did come through: Senate Majority Leader Chuck Schumer struck a deal with Republicans to leave four appeals court hearings open until next year in exchange for Republican senators, creating a ten district judges could be quickly taken into account.
Democrats have said they didn’t have the support for these confirmations anyway. And one of the appeals court lawyers later backed away from his stated intention to retire, angering Republicans.
Still, a half-dozen Republican senators told POLITICO they were on top of that agreement. Sen. Eric Schmitt (R-Mo.), a member of the judiciary close to Trump, called it a “good deal.”
Senate Democrats are no strangers to criticism for how they’ve handled judicial openings, but Durbin noted that they’ve managed to break Trump’s record despite having a narrow lead in the House.
“We have had a tied Senate and a tied committee for two years, [and] we reported almost 100 judges,” Durbin said. “Pretty good, huh? You can’t say yes, but I’ll say it for you: pretty damn good.
Republicans insist they are willing to confirm more of Trump’s judicial picks — and they will take cues from Durbin as they look to leave no slot unused.
“All I can say is, I hope Republicans will look at what he’s done over the last four years,” Hawley said.
