Biden’s court picks face fierce GOP opposition

President Biden is facing fierce opposition from the Republicans to his court picks, marking the latest escalation of an increasingly partisan fight in the Senate over the nation’s courts. 

Most Republicans have voted for only a handful of the 40 judicial picks confirmed by the Senate this year, with a GOP senator voting on average for fewer than five nominees, according to a Hill review of the votes. 

It’s a steep departure from the Obama years that, absent a reversal, judiciary watchers warn, represents a “new normal” in what has historically been a largely mundane but key part of the Senate’s work: confirming judicial nominees. 

Asked about the GOP opposition, Sen. Chuck Grassley (Iowa), the top Republican on the Senate Judiciary Committee, noted that some Democrats on the panel began widespread opposition to former President Trump’s nominees off the bat. 

“We had, when Trump’s nominees were up, there were three or four Democrats, regardless of qualifications or even their orientation, voted against every one in committee, and I bet you’re seeing that pattern exhibited by some Republicans,” Grassley told The Hill.  

More than 92 percent of Biden’s court picks got “no” votes from more than 25 percent of senators, compared to 18.2 percent at the same point in former President Obama’s tenure, according to The Heritage Foundation’s judicial appointments tracker.

It’s closer to, but still higher than, the roughly 68 percent of Trump’s judicial nominees who got “no” votes from more than 25 percent of senators, according to the Heritage data.

“What used to be just acceptance of a basic government function that the president nominates and, you know, absent a serious problem, the Senate judicial nominees … that’s just ancient history anymore,” said Russell Wheeler, a fellow with the Brookings Institution who studies judicial confirmations. He described the current atmosphere as “dog eat dog.” 

Grassley supported 15 of 40 of Biden’s court picks confirmed during the president’s first year. That’s less than 38 percent of the nominees, but it puts him in fourth place in the caucus for the most “yes” votes, behind Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and Lindsey Graham (R-S.C.), who have voted for 35, 32 and 25, respectively. 

Collins and Murkowski are the Senate GOP caucus’s most well-known moderates.

Graham — who opposed roughly the same number as Collins and Murkowski but missed a string of votes— has been a top ally for Biden’s judicial nominees by embracing an increasingly rare position of believing that a president should get their judicial nominees unless they are outside the mainstream or unqualified.

Judicial experts floated that Republicans are likely reacting to the stepped-up opposition from Democrats to Trump’s nominees. 

“What we’re seeing now is probably just a continuation of that,” said Thomas Jipping, a senior legal fellow at the Heritage Foundation. “Is this the new normal? Did Democrats create the new normal under Trump? And they may have.”

Wheeler, while noting that the opposition was “more intense” on the appeals court nominees, added,  “I think the Republicans now are saying, ‘Well, you know, you voted [against] our guy’s nominees. We’re going to vote against yours.’”

“If I were a betting person, I would bet that it is more going to be the new standard,” he said. 

Democrats bristled at Trump’s court picks, who were largely male, white and conservative.

By the end of his tenure, Trump had gotten 234 judges confirmed, second only to the Carter administration, after the Senate GOP majority made it a top priority. 

But Biden surpassed Trump’s numbers in his first year.

The 40 judicial confirmations under Biden are the most since former President Reagan’s first term. Democrats and Biden, eager to make their own mark, have placed an emphasis on diversifying the bench. 

“These judges will bring sorely-needed diversity to the judiciary: not just demographic diversity, but also professional diversity, adding to the breadth and width and depth of knowledge possessed by the courts,” Senate Majority Leader Charles Schumer (D-N.Y.) said after Democrats confirmed their 40th nominee. 

Unlike legislation, where 60 votes are still required to advance most bills through the Senate, nominees don’t need bipartisan support to get confirmed. 

Thirteen of the 50 GOP senators have voted for none of Biden’s judicial picks during his first year, according to a Hill review of the 40 confirmation votes, and another 12 have voted for one or two nominees. 

Sen. Mike Braun (R-Ind.) has voted to confirm none of Biden’s judicial nominees so far but cautioned that his opposition so far “doesn’t necessarily mean that will be the case” moving forward. A district judge in Braun’s home state announced in July that they would retire, paving the way for an opening. The GOP senator will need to work out a deal with the White House in order to fill it.

“I want them to have some basic grounding in common sense and not to where they are out there on the edge,” he said. “I’ll look at them all on the merits.” 

Sen. Josh Hawley (Mo.), who had high-profile tangles with some of Trump’s judicial nominees, is also among the GOP’s “no” caucus on Biden’s judicial picks so far. 

He said his blanket opposition is simple: “I just don’t really like them.” 

“I voted ‘no’ in committee, and I just don’t like the philosophy of the judges that he’s appointing. My advice and consent is to advise against it,” Hawley said.

Among members of leadership, Sen. Joni Ernst (R-Iowa) has supported the most of Biden’s judicial nominees: seven. Senate Minority Leader Mitch McConnell (R-Ky.) is at four, retiring Sen. Roy Blunt (R-Mo.) is at three, and Sens. John Thune (R-S.D.), John Barrasso (R-Wyo.) and Rick Scott (R-Fla.) have each voted for one nominee. 

That low level of support is largely in line with most of the caucus. 

In addition to Grassley, Collins, Murkowski and Graham, only two additional GOP senators have enough yes votes to get them to double digits: Sens. John Cornyn (Texas) and Thom Tillis (N.C.) at 10 and 13 “yes” votes, respectively. 

Asked about the higher GOP opposition to Biden’s nominees, Cornyn quipped rhetorically, “Are they being confirmed?” 

“I just call them one at a time myself,” he added. “A number of the Biden judicial nominees are pretty radical.”