The White House is in a race against the clock to confirm more judges than Trump

The Biden administration is sharpening its focus for the rest of this Congress, pressing Senate Democrats to beat the number of judges appointed by former President Donald Trump.

On Wednesday, the Senate is expected to confirm the 200th judge of President Joe Biden’s tenure. That puts the party slightly ahead of the 196 judges that Trump had secured at this point in his term, according to an American Constitution Society tally.

Confirming more than 234 judges — the number confirmed during Trump’s presidency — with lifetime appointments would provide Biden with the type of governing imprint that Trump, should he win in November, could not erase. Some progressive activists have long stressed that the party needs to better prioritize the issue of appointing judges, an argument that took on new clarity after the Supreme Court’s Dobbs decision rolled back abortion rights. If Democrats can exceed 234 judges, they will have replaced about one-quarter of the federal judiciary and with an unprecedented level of diversity on the bench.

But the job becomes harder from here. Well over half of the remaining district court vacancies are in red states that will require Republican cooperation. And some Senate Republicans have begun criticizing the White House for trying to “jam” circuit court nominees before the election and over the objections of home-state senators.

“They’re afraid President Biden is going to get beat and they won’t have any nominees,” said Sen. John Kennedy (R-La.), a sentiment repeated by several Republicans on the Judiciary Committee.

A White House official said the push on judges is the fulfillment of Biden’s pledge to fill every possible vacancy. The president benefits from the fact that much, if not all, of the major legislative tasks for this Congress are now behind him. And Biden administration officials hope to exceed 234 judges confirmed to the bench before the clock runs out.

“We want to keep up a steady pace of nominations, and we'd like to see from the Senate an accompanying steady pace of confirmations,” said Phil Brest, the White House senior counsel in charge of nominations. “Of course we would love the opportunity to exceed Trump’s numbers.”

Brest said that the White House was emphasizing this objective “regularly” to the Senate.

The question facing the party is not whether they have enough will but whether they will have enough time.

“I’m going to continue working with the White House, my colleagues in the Senate, and Leader Schumer to ensure highly qualified, diverse nominees are identified, nominated, advanced, and ultimately voted on and confirmed,” said Senate Judiciary Chair Dick Durbin (D-Ill.).

Senate Majority Leader Chuck Schumer said Democrats would “keep at it.”

“We’ve had a strong and steady pace while having to balance other nominations, important legislation and Republican obstruction,” said Schumer.

Forty-one current district court vacancies remain, including 25 in states with at least one Republican senator, including five in Texas, three in Missouri, three in Florida and two in Alabama.

While Schumer has the power to keep the Senate open around the clock through the end of the year to confirm as many nominees as possible if he chooses to keep vulnerable candidates off the campaign trail, Republicans have tools at their disposal to stop the Biden administration’s nominees to district courts. Durbin, to the chagrin of progressive activists, has kept the tradition of the “blue slip” for district nominees, which prevents them from moving forward unless both home state senators give their approval. The blue slip essentially amounts to a veto, meaning the White House would have to withdraw a nominee and vet a new one.

Such a move could prove very enticing for GOP lawmakers to use in hopes of running out the clock to keep judicial seats open for a potential Trump administration.

The Biden administration argues Republicans have shown more resistance to their nominees than Democrats did to Trump candidates.

“As a general matter, Senate Republicans are less willing to support our nominees, even our standard District Court nominees — far less willing than Democrats were willing to support Trump's similarly situated nominees,” Brest said. “We still hope that some Republicans who have been more recalcitrant will come to the table because of the stakes for administering the rule of law in their home states.”

Republicans on the Judiciary Committee say they’ve seen an uptick in the Biden administration’s interest in moving nominees. Kennedy, a Judiciary Committee Republican who has three district court vacancies in his state of Louisiana, signaled that, of late, the White House has been more willing to find consensus picks as a means of keeping confirmations going.

“They started out very inflexible,” he said of the beginning of Biden’s term. “Then they got more flexible and we've actually reached agreement on a couple. … Now, they're starting to call and go, ‘we want to rev up the process again.’”

Brest called Louisiana — from which three district court judges have been confirmed — “a testament to flexibility and engagement by the White House and senators” and expressed eagerness “to work with the senators to fill” the remaining vacancies.

But there are tensions with Republicans elsewhere.

A handful of Republicans, including Sens. Marsha Blackburn (R-Tenn.) and Thom Tillis (R-N.C.), have been sharply critical of how the White House has handled circuit court-level nominations, where Republicans don’t have blue slip authority. Both said the administration ignored Blackburn and fellow Tennessee Sen. Bill Hagerty’s opposition to Sixth Circuit Court nominee Kevin Ritz, whose nomination is pending.

Tillis said in an interview that he wouldn’t even talk about a North Carolina district court vacancy — and an expected second — until the administration works out a Fourth Circuit nomination with him. He said the White House tried to “jam” him on a Fourth Circuit nominee.

“They're going through the motions of considering our suggestions and then telling us who they're going to submit,” Tillis said. He said he had “no intention of even discussing" the district court nominees in his state until the Fourth Circuit question was resolved.

A White House official disputed that characterization, arguing that the administration sought Tillis’ input on vacancies in North Carolina and the Fourth Circuit, including offering four candidates for the North Carolina senators’ consideration and considering four of their candidates. The administration chose to proceed with one of their candidates.

There are several other examples of conservative Republicans working with the White House to move judges, including district court appointees in states such as South Dakota, Texas and Florida.

Still, many of the nominations getting through the Senate these days are happening on strict or nearly strict party-line votes. Of the 18 judges approved by the Senate since March 1, only seven were confirmed with more than 60 votes.

Biden inherited less than half the vacancies that Trump had upon entering office, but Senate Democrats have been able to confirm Biden’s nominees at roughly the same clip as Republican confirmation numbers under Trump. Democrats briefly fell off that trendline in 2023 but spent the first months of this year catching up.

The Biden White House has prioritized various levels of diversity, including sex, race and professional background of its judges. Nearly two-thirds of the confirmed judges are women and 62 percent are people of color, according to administration figures Democrats frequently tout. Thirty of the 42 circuit judges are women, including several who advocated for reproductive rights prior to their appointment, including Julie Rikelman, who represented an abortion clinic in the Dobbs case.

Beating Trump’s number “certainly is realistic and possible,” said Zachary Gima, director of strategic engagement at the American Constitution Society. The White House has been shuttling nominees and the Judiciary Committee has been quickly moving them, he said, but “the real unknown has been and will be the Senate floor.”

Schumer will have to balance keeping the Senate in session to confirm judges with sending his vulnerable in-cycle senators out on the campaign trail — which becomes all the more difficult as Election Day nears.

Brest said the administration will continue sending nominations up to the Hill “at a regular clip.” And he hinted they will continue to do so into the heart of campaign season.

“We want to ensure we are getting the Judiciary Committee enough nominees to fill hearings between now and the August recess,” Brest said. “But we don't see the August recess as being a cut-off point.”