Democrats are mulling how to reshape the federal judiciary after Republicans moved at record speed to confirm conservative judges over the past four years.
Former President Trump, aided by a GOP-controlled Senate, set the second-fastest pace on record for judicial appointments, allowing him to stack the courts with picks, including three Supreme Court justices, who were overwhelmingly white, younger and ideologically conservative.
President Biden has 50 vacancies to fill: three on the influential circuit courts and 47 in district courts. That number will eventually grow, including an opening on the powerful D.C. circuit court once Merrick Garland is confirmed as attorney general.
As Democrats plot their strategy, they are floating expanding the number of lower court seats, an idea that could have some bipartisan support.
“I have in the city of Buffalo a huge — they don't have enough judges. There's this long line before you can get to court because they don't have enough. So we could expand those,” Senate Majority Leader Charles Schumer (D-N.Y.) said during a recent interview with MSNBC’s Rachel Maddow.
Sen. Dick Durbin (D-Ill.), the majority whip and incoming Senate Judiciary Committee chairman, also appeared open to the idea, saying that a GOP senator had already raised the issue with him.
“Interestingly enough, I had a Republican senator who approached me about expanding the number of federal judges in his state so there seems to be some sentiment that there [are] backlogs in the dockets of federal judges,” Durbin said.
Expanding the number of court seats would require legislation in Congress, including GOP support in the Senate.
Sen. John Cornyn (R-Texas) hasn’t discussed the issue with Durbin but said he is willing to discuss more lower court judgeships.
“My state’s a big, growing state, and we’ve got huge caseloads. ... I’d be open to having a conversation about that,” Cornyn said.
Nominations need only a simple majority to be confirmed in the Senate after Democrats nixed the 60-vote filibuster for executive and lower court nominees in 2013 and Republicans got rid of the same threshold for the Supreme Court in 2017. Republicans also changed the rules in 2019 to reduce the amount of debate time for most executive nominees and district judges, a change that will now benefit Democrats.
But Democrats will need to decide what to do about blue slips — the sheet of paper that indicates if home-state senators back a nominee, support that had been considered critical before the Trump administration.
Republicans ignored the blue slip for circuit court judges, infuriating Democrats and outside activists by moving Trump picks over their opposition. In addition to determining if they’ll follow the GOP precedent, senators are under pressure from outside groups to ignore them on district court nominations as well.
“I think one of the tests is in the places where there is not a Democratic senator or in which there has been a tradition of blue-slipping district judges, how tough we’re prepared to be about not accepting bad faith failures to return a blue slip and just driving the nominees through,” said Sen. Sheldon Whitehouse (D-R.I.), a senior member of the Senate Judiciary Committee, during an Alliance for Justice event.
Durbin has not said how he will handle blue slips.
Biden is starting his presidency with the fewest number of judicial vacancies since former President George H.W. Bush, according to FiveThirtyEight.
But Democrats are hinting that additional vacancies could be coming as judges who might have been wary of retiring during the Trump administration begin to take senior status, which would help Biden, who previously chaired the Senate Judiciary Committee, broaden his ability to shape the courts.
Republicans publicly pressured GOP-appointed judges to step down last year as their control of the White House and the Senate GOP majority increasingly and accurately appeared in jeopardy.
“There will be lots of vacancies that come up. And I think there are a lot of judges, Democratic appointees who didn't take senior status while Trump was president who now will, and ... then we get to fill it,” Schumer said.
The federal courts have emerged as a growing lightning rod in recent years as the Senate has been buffeted by back-to-back Supreme Court fights and Democrats have faced growing pressure from their base to enact broad judicial reforms.
Progressive have publicly pressured Justice Stephen Breyer to retire so Biden can fill the seat while Democrats control the Senate. Breyer, 82, is the oldest Supreme Court justice who was appointed by a Democratic president. Breyer was appointed by former President Clinton, while Justices Elena Kagan and Sonia Sotomayor were appointed by then-President Obama and are 60 and 66, respectively.
Progressives are also trying to build pressure on Democrats to expand the Supreme Court. Republicans refused to give Garland, Obama’s final Supreme Court nominee, a hearing or a vote during an election year but then set a new record in 2020 for how close to an election a Supreme Court pick has been confirmed with Justice Amy Coney Barrett, Trump’s third nominee.
Increasing the size of the Supreme Court would combine two politically controversial ideas, with the other being nixing the 60-vote legislative filibuster, something Senate Democrats don’t currently have the votes to do. Both the House and Senate would then have to pass legislation changing the size of the court, which has been at nine justices since 1869.
Biden has started a commission to look at reforms to the Supreme Court and the federal judiciary.
Schumer was noncommittal about the future of the Supreme Court, saying Democrats would wait to see what that group recommends.
“As for the Supreme Court, that's the big one, and President Biden has put together this commission to come up with a report in 180 days. We're going to see what that commission says and go from there,” Schumer said.
He added that while he was waiting to see the report, the Senate Democratic caucus was “torn” over the idea of adding seats to the Supreme Court. He would need the support of every member of the caucus to both nix the filibuster and vote to expand the Supreme Court.