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Supreme Court Vacancy Could Actually Shrink Biden’s Judicial Footprint

Lengthy confirmation process will slow the rise of progressive judges at lower courts

President Joe Biden (Photo by Drew Angerer/Getty Images)
• February 1, 2022 5:00 am

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President Joe Biden's Supreme Court appointment could be a net-negative for his judicial legacy, as the confirmation process will gum up the works for lower court nominees awaiting hearings and final votes.

Senate Democrats confirmed more than 40 Biden nominees in 2021, but that lively pace will grind to a halt once the Senate Judiciary Committee turns its attention to the president's Supreme Court pick. And with Republicans favored to take control of the Senate in November, time is running out for Biden to stack the courts with a new generation of young, ideological progressives.

"Supreme Court confirmations generally take about two months, sometimes faster, from nomination to confirmation," said Mike Davis, a former nominations chief for Sen. Chuck Grassley (R., Iowa). "And the lower court nominations generally get put on the back-burner and all eyes—and resources—focus on the Supreme Court nominee."

A prompt and orderly confirmation will provide a badly needed boost for Biden, whose approval is slipping with Democratic voters, according to recent polling. Given the stakes of the Supreme Court nomination, lawmakers and staff on the Judiciary Committee will concentrate on the nominee at the exclusion of almost all other panel business. They'll collect and review the candidate's entire paper trail in excruciating detail, stretching back to law school and their earliest days in practice. For example, Justice Brett Kavanaugh's nomination meant the committee needed to review a decade's worth of judicial opinions and tens of thousands of emails and documents Kavanaugh produced as a government lawyer.

The scale of Kavanaugh's record was a strike against picking him—Senate Minority Leader Mitch McConnell (R., Ky.), who was then serving as majority leader, warned former president Donald Trump that Kavanaugh's nomination would take too much time and stall other nominees.

Once production and review is completed, the confirmation hearing itself runs about a week, with lengthy question-and-answer periods for each lawmaker and supplemental testimony from advocacy groups and subject-matter experts.

Senate Judiciary Committee chairman Sen. Dick Durbin (D., Ill.) acknowledged the problem Sunday, when he hinted the timeline will depend on the committee's familiarity with the nominee.

"That nominee and the background of the nominee—in terms of whether they've been before the committee, how recently they were there, and how much information we can bring together quickly—will decide the timeline," he said on ABC's This Week with George Stephanopoulos.

Those comments are a boost for Judge Ketanji Brown Jackson, who appeared before the committee in April 2021 and was confirmed to the U.S. Court of Appeals for the D.C. Circuit in June. A Jackson nomination would be a near-perfect retread of that process.

Durbin's remarks are also helpful to U.S. District Judge J. Michelle Childs. Biden tapped Childs for the D.C. Circuit in December, so Judiciary Committee staff were likely familiarizing themselves with her record when Justice Stephen Breyer announced his retirement. Davis, the ex-Grassley aide, noted the Judiciary Committee was set to consider Childs's D.C. Circuit nomination on Tuesday, but they've canceled those plans, highlighting the challenge they face.

There are 25 Biden nominees awaiting appearances before the Senate Judiciary Committee, 4 to the federal appeals courts and 21 for federal trial courts.

Biden has made 42 lifetime appointments to the federal courts as of this writing, albeit mostly on left-leaning benches. Of those 42, 13 have been confirmed to the federal appeals courts and 29 to the federal trial courts. The trial court confirmations have mostly been in deep-blue states. Democrats have made little progress filling vacancies in more conservative parts of the country.

By comparison, Trump had made 23 appointments by this point in his presidency. Davis said that disparity is attributable to a three-month delay prompted by Justice Neil Gorsuch's confirmation. Unlike Biden, Trump took office with an open seat on the High Court, which was the priority item.

"President Trump had a slow start filling lower court vacancies, as he appointed Justice Gorsuch and Senate Republicans had to bulldoze through fierce Democrat obstruction," Davis said.

Another reason Democrats will want to move quickly is that an untimely illness or death could undo their thin majority in the Senate. Justice Amy Coney Barrett's speedy confirmation was nearly derailed when several Senate Republicans contracted COVID, though the GOP took steps to mitigate transmission risk and kept to their original schedule.

The confirmation timeline will prove quite amenable to the eventual nominee. Taking the bench during the Court's summer recess will afford ample time to hire clerks and assistants, set up their chambers, and get up to speed on the Court’s business before the justices return for a new term in October.