However, the sheer scope of Biden’s effort — and the substantial number of pending vacancies — could encounter a time crunch as Senate leaders seek to overcome Republican delaying tactics amid concern that possible GOP Senate control next year could bring the effort to a virtual halt.
The narrow line that the president’s Senate allies are walking was illustrated Tuesday when two Democratic absences prevented confirmation of Arianna Freeman, who would be the first Black woman on the 3rd Circuit Court of Appeals.
At present, 14 federal judicial nominations are pending on the Senate’s Executive Calendar, most for several months. Four others will first require a formal Senate vote to put them on the calendar because of tied votes in the panel of 11 Democrats and 11 Republicans.
Those 18 awaiting Senate action are a small proportion of the pending nominees. In addition, Biden has yet to make nominations for many other current vacancies — plus prospective vacancies where sitting judges have announced retirement plans, some so a fellow Democrat can succeed them.
Of the eight current appeals court vacancies, nominations have yet to be made for three. Of the 69 current district court openings, there are no nominees for 31.
Some delays likely stem from disagreements between Republican senators and the Democratic White House over prospective nominees. In Texas, the White House sought to bypass the two Republican senators by announcing that Dallas Democratic Rep. Eddie Bernice Johnson would handle judicial nominations.
Meanwhile, progressive Democratic groups have complained about the confirmation pace. Because of the 50-50 Senate, however, Judiciary Committee procedures require acquiescence of both parties. Aides say it is following the pattern of past Republican and Democratic Senate majorities — holding hearings on judicial nominations every other week.
With just weeks before the Senate recesses for the Nov. 8 midterm elections, judicial nominations are fighting for time on the schedule against such other major measures as the appropriations legislation to fund the government past Sept. 30 and a proposal to codify the legality of same-sex marriages.
Inevitably, it appears, judicial confirmations will become a major item in the Senate’s post-election lame-duck session, not an unusual situation. Judge Cannon was among 13 Trump nominees confirmed after his 2020 election defeat.
Filling judgeships then will become even more urgent if Republicans capture the Senate. GOP leaders have already signaled they would slow down or halt confirming Biden’s judicial nominees, like they did in the last two years of former President Barack Obama’s second term.