From 2017 until 2020, former President Donald Trump and the Republican Senate majority nominated and confirmed record-breaking numbers of appellate court judges. This emphasis undermined ethnic, gender, sexual orientation, and experiential diversity as well as ideological balance on these courts and neglected to address persistent district court and emergency vacancies. Moreover, to achieve these historic confirmation levels, the GOP Senate majority eviscerated or altered certain rules and customs of regular order, which included the creation of a circuit-level exception to the blue slip process. President Joe Biden, in turn, has pledged to rectify the damage to the courts and the judicial selection process wrought by the Trump Administration.
This Article provides an overview of the recent historical and political context regarding judicial nominations and confirmations followed by an examination of the nomination and confirmation processes deployed by President Trump and the Senate majorities in the 115th and 116th Congress. Next, the Article explores the nomination and confirmation processes that have been employed thus far by the Biden Administration and the Democratic Senate majority. These processes include emphasis on openings at the appellate court level and intentionally nominating candidates who are diverse in terms of ethnicity, gender, sexual orientation, ideology, and experience. The quintessential illustration is the confirmation of the first Black woman to the Supreme Court, Justice Ketanji Brown Jackson.
Finally, the Article proffers both short-term and long-term suggestions respecting how the Biden Administration might continue to improve the judicial selection process and the courts. Short-term suggestions include elevating magistrate, state-level, and district court judges; renaming qualified Obama nominees whom the Senate did not confirm; and maintaining or expanding the blue slip exception for the time being. Long-term suggestions include clarifying and codifying the Leahy Rule and instituting a bipartisan judiciary. Having maintained Democrats’ Senate majority in the 2022 elections, which happened shortly after the writing of this article, President Biden and the Democratic senators may have the opportunity to implement these suggestions in the near future.
Carl Tobias, How Biden Can Continue Making the Federal Courts Better, 25 N.Y.U. J. Legis. & Pub. Pol'y 43 (2023).