The Democratic-controlled Senate has barreled President Joe Biden’s judicial nominees down the confirmation track over the past year, and with the start of the new legislative session, it shows no signs of pumping the brakes.
But rising Republican opposition and the upcoming midterm elections threaten to slow the pace of seating judges of diverse backgrounds on the federal bench.
Biden had more of his judicial picks confirmed in 2021 than any president in his first year in office since Ronald Reagan. They included the first openly LGBT woman to sit on a federal circuit court; the first Muslim American federal judge in U.S. history; the first Asian American female district judge for the District of Columbia; and the first Black judge on the U.S. Court of Appeals for the Federal Circuit, according to the White House.
Rising degrees of GOP opposition could mean serious slowdowns in committee for Biden’s judicial picks. The panel’s 11 Democrats and 11 Republicans could increasingly deadlock, requiring a motion to discharge a nominee to the floor from Senate Majority Leader Charles E. Schumer.
Republicans have said they expect Biden’s White House to loop them in on selecting district nominees for their states. Mike Davis, once Grassley’s chief counsel for nominations and now the president of The Article III Project, a group he founded to promote Trump’s judicial picks, said his former boss “wanted to ensure that there were documented communications between the [Trump] White House Counsel’s Office and the home-state senators.”
“If it was just telephone tag and not good faith consultation, that wasn’t good enough,” Davis said.
Now the ranking member on Judiciary, Grassley expects no different from the Biden White House. Foy, his spokesman, said that, as chairman, the Iowa Republican worked with the White House to ensure home-state senators were consulted ahead of any nominations, and current Chair Richard J. Durbin should do the same.
“He expects the Democrats to uphold that principle for senators from both parties. Republicans will continue to examine nominees for their ability, respect for the Constitution, fidelity to the law, integrity, temperament, and competence,” Foy added.
With the gavel in hand, Durbin could ignore honoring blue slips at the district level, like Grassley did at the circuit level.
But that would mean “a significant departure from the historic practice” that Democrats would likely come to regret, Grassley’s spokesman said.
“Grassley never proceeded with consideration of a district court nominee that did not have blue slips from both home-state senators, even in the face of great pressure from the Trump administration and others,” Foy added.