WASHINGTON — With an extended summer recess looming and their majority at risk in November elections, Senate Democrats were facing the prospect of allowing dozens of judicial vacancies to go unfilled by President Biden this year, and under pressure from progressive activists to move more quickly and aggressively to push them through.
Mr. Biden and Democrats have installed scores of the president’s picks on the federal bench to offset the conservative imprint of the Trump era, a bright spot for the Biden administration despite Democrats’ tight majorities in Congress. But progressive groups warned that unless Democrats took more aggressive steps and quickened their pace, the party could lose its chance to reshape the courts.
Progressives have called for Democrats to stay in session in August, when they were scheduled to have a four-week recess, to hold hearings on nominees, teeing them up for floor votes later this fall. And they have pushed Democrats to abandon the “blue slip” practice that effectively grants home-state senators veto power over candidates for federal district court judges in their states, which has limited the administration’s ability to win confirmation of district court nominees in states represented by Republicans.
Time is of the essence, the activists argue, because Republicans are likely to drastically slow — if not halt — the confirmation of Biden-nominated judges if they win the majority in midterm elections this fall. At their current pace, Democrats face the prospect of not being able to fill as many as 60 district and appellate court vacancies by the end of the year. Federal judges have been retiring or taking senior status faster than the White House has been able to identify nominees and send them to the Senate for consideration, a process that can consume months.
“This is a historic opportunity to continue the wonderful progress that has been made under the Biden administration to correct the harm that has been done to the federal judiciary,” said Russ Feingold, a former Democratic senator from Wisconsin who leads the American Constitution Society, a progressive legal group. “This is a moment to play hardball.”
The advocacy groups have applied pressure through a digital advertising campaign aimed at Senator Richard J. Durbin, Democrat of Illinois and the Judiciary Committee chairman, and op-eds, among other tactics.
Though some Democratic allies were clamoring for the Senate to stay in session through August to vote on judicial nominees, that appeared unlikely. But Mr. Feingold and others said that, at a minimum, Democrats should use the time to conduct Judiciary Committee hearings. In a break with past practice, Republicans in 2018 began holding confirmation hearings during their August recess.
The groups would also like to see Democrats increase the number of nominees considered at each hearing.
“Republicans held hearings during recess to move more Trump judges, and Democrats should now do the same,” said Chris Kang, general counsel for Demand Justice, a progressive group. “This is not radical — there is recent precedent for it that just needs to be followed.”
The Biden Presidency
With midterm elections looming, here’s where President Biden stands.
When the Republican majority and Donald J. Trump’s presidency seemed in danger in 2020, Senator Mitch McConnell, the Kentucky Republican who was then the majority leader, adopted a mantra of “leave no vacancy behind” and followed a policy of trying to fill every possible judicial opening before a shift in power. But Republicans had not been at the mercy of Democrats for cooperation, since they had a slightly larger majority that provided more flexibility.
Senate Democrats say no one wants to keep confirming Biden-nominated judges more than they do, but given the 50-50 Senate and the evenly divided Judiciary Committee, they do not have the latitude that Mr. McConnell did in years past. They see the confirmation of 74 judges so far over the past two years — including a new Supreme Court justice — as a major accomplishment, and they say there is a real possibility of exceeding 100 by the end of the year.
“We are doing fantastic,” said Senator Chuck Schumer, the New York Democrat and majority leader, who has long had a deep interest in judicial confirmations.
Democrats have also warned about the hazards of getting too aggressive in advancing nominees given the 11-11 split on the judiciary panel, which oversees the confirmation process. The committee has already had to juggle regular absences by lawmakers because of the coronavirus and other health issues.
The Judiciary Committee’s rules require at least one Republican to be present to conduct business, such as voting to send nominees to the floor, and Democrats say that a backlash by Republicans to Democratic heavy-handedness could lead to fewer judicial nominees advancing, not more.
“We have done very well so far, we have a number of judges going through,” Mr. Durbin said. “If I get confrontational, it is just tempting fate.”
Mr. Durbin and other Democrats said they were considering the idea of holding confirmation hearings even while the Senate was on break, since they could point to Republicans doing so in the past.
“We are discussing options based on precedent,” Mr. Durbin said in an interview. “We have to be able to say to the Republicans, ‘Here is what you did; here is what we want to do.’ ’’
Mr. Durbin has leveraged his working relationship with top Republicans on the committee to keep the confirmation train running despite intense partisanship over many nominees. A few Republicans, including Senators Lindsey Graham of South Carolina and Thom Tillis of North Carolina, have also provided some support, sparing Democrats from time-consuming floor votes to “discharge” nominees from committee in the event of a deadlock.
“Several Republican senators have been accommodating,” Mr. Durbin said.
He and his fellow Democrats fear that such cooperation may disappear should they push Republicans to the wall. And Democrats are concerned that eliminating the blue slip power could backfire on them during a future Republican presidency.
The worry for Democrats is that if Republicans take control of the Senate at the start of next year, Mr. McConnell, the minority leader with a history of playing hardball on judicial nominees, will prevent Mr. Biden from filling most of them in hopes of a Republican winning the White House in 2024. When Mr. McConnell became majority leader in 2015, he slowed judicial confirmations to a trickle for the final years of Barack Obama’s administration.
Democrats say their chance to push judges through might not come around again for some time should they lose the majority.
“The fact that you are going to leave 60 vacancies open for McConnell to block should be very alarming to everybody,” said Mr. Kang, who worked on judicial nominations in the Obama White House and was also a former counsel to Mr. Durbin.
In a recent interview, Mr. McConnell appeared to suggest that liberal activists were right to be worried about what he and Republicans would do on judge seat vacancies if Democrats came up short in their push to hold on to the Senate.
“If they lose the Senate, I’d keep everybody here as long as I could get enough attendance to fill every vacancy I possibly could before the end of the year,” he said. “Which is not to say we are going to shut down everything. But that’s what I’d do.”
