In one month, we will mark the one-year anniversary of the Supreme Court’s Dobbs decision, which wiped out 50 years of this country’s recognition of the right to abortion care.
Of all the harm done by Donald Trump and Sen. Mitch McConnell’s (R-Ky.) project to remake the federal courts, this ruling stands out for its historical significance as well as its destructiveness. But there are many more; during his one term, Trump racked up a whopping 231 judicial confirmations, including his three Supreme Court justices. The disastrous overturning of Roe v. Wade is just part of the fallout we’re suffering as a country.
President Biden’s progress in rebalancing the courts — with the active support of Senate Judiciary Committee Chair Dick Durbin (D-Ill.) and Majority Leader Charles Schumer (D-N.Y.) — has been impressive. His nominees are more qualified and experienced than those of Trump, who gained a reputation for nominating young, green partisans. He has made it a point to diversify the bench professionally and demographically, and he’s been successful. The recent confirmations of Nancy Abudu to the Eleventh Circuit (the first Black woman to ever serve on that court) and Brad Garcia to the D.C. Circuit Court (the first Latino on that court) are exciting cases in point.
The president’s numbers are solid, too: Our analysis of U.S. Courts showed that Biden had 129 federal judicial confirmations to his credit as of May 19. If you look all the way back to FDR’s administration, only Bill Clinton had more at this point in his presidency, with 141.
Now is the time to double down on this work. Well into the third year of the president’s term, the clock is ticking on this administration’s opportunity to appoint as many new judges as it can to continue to rebalance the courts and remedy the harm done by Trump. That means breaking any remaining logjams that are slowing down confirmations. And if senators have to work overtime or postpone their summer break to make that happen, they should do so.
As of the second week in May, there were still 74 current vacancies on federal district and circuit courts, and 93 if you include announced future vacancies. There are also some two dozen circuit and district court nominees whose confirmation processes have become stuck along the way to final floor votes. Unsticking these processes must continue to be a priority of the Senate now.
The recent confirmations give us hope on that front. Sen. Dianne Feinstein’s (D-Calif.) extended absence hurt the majority’s ability to hold committee and floor votes on nominees, but now that she is back, we can be cautiously optimistic that the wheels have started turning again. This is great news for several outstanding civil rights and reproductive rights lawyers among the nominees, whose confirmations have been sidelined.
The process can’t be allowed to lapse again. Feinstein’s illness has proven once more how tenuous the Democrats’ hold on a functioning majority is at any one moment. There is a window of opportunity now to clear the decks of all remaining nominees — some of whom were stalled for an entire year — and the Senate must take it. That means working nights, weekends and through previously scheduled breaks if necessary. It’s that urgent.
We are ready to issue this challenge: We believe that if the Senate prioritizes these lower court nominations and puts in the hours to get them done, the full backlog of languishing nominations can be cleared by the July 4 break. The Senate should commit to this goal.
And if anyone doubts just how critical lower court judges are, I have two words for them: Matthew Kacsmaryk. Kacsmaryk was one of Trump’s extreme appointees, a hard-right culture warrior who now sits on the U.S. District Court in Amarillo, Texas. Judge Kacsmaryk’s ruling questioning the FDA’s decades-old approval of a medication abortion drug, mifepristone, threatens access to the medication nationwide. Not only that, it threatens the authority of the FDA and the entire ability of pharmaceutical companies to do business in this country.
Thanks to Trump, lower federal courts are now bursting with judges like this. And that means the next step in the process of loosening the ultraconservative grip on these courts must be a change in how the Senate and White House approach the blue slip. In the long run, the minority party’s threats to withhold blue slip approval of the processing of Biden’s district court nominees must not stop Biden from naming, or the Senate from processing, judicial nominees.
Nearly three years ago, the American people elected Joe Biden knowing — and desiring — that his election would bring a fresh cohort of judges to the federal bench. Voters knew full well the potential of Trump’s judges to wreak havoc. They were right.
The Senate and White House owe it to these voters to focus on fulfilling Biden’s promise on judges. They must rebalance the courts to the fullest extent of their ability.
As none other than that stalwart of the right, Sen. Lindsey Graham (R-S.C.), has repeatedly noted, “Elections have consequences.” Time is running out to make consequential changes in the courts.
Svante Myrick is the president of People For the American Way. Previously, he served as executive director of People For and led campaigns focused on transforming public safety, racial equity, voting rights and empowering young elected officials. Myrick garnered national attention as the youngest-ever mayor in New York State history.