Democrats are pondering how to reform the federal judiciary after Republicans have moved at record speed for the past four years to confirm Conservative judges.
Former President Trump
Donald Trump Kelli Ward Rejects Request For Arizona GOP Race Audit Rifle Sales Rise Amid Pandemic Uncertainty, Biden’s Vow For Gun Reform Top Trump Impeachment Attorney Bowers Leaves Team: Reports MORE, assisted by a GOP-controlled Senate, set the second-fastest pace for judicial appointments, allowing him to pile the courts with pickaxes, including three Supreme Court justices, who were predominantly white, younger, and ideologically conservative.
President Biden has 50 vacancies to fill: three in the influential circuit courts and 47 in district courts. That number will eventually grow, including one opening on the powerful DC circuit Merrick Garland
Merrick Brian Garland Democrats weigh in on expansion of lower courts after Trump blitz Biden begins staff committee to study Supreme Court reform: report Over 40 lawmakers sign letter asking Merrick Garland to prioritize abolition of the death penalty MORE is confirmed as Attorney General.
As Democrats plot out their strategy, they are expanding the number of seats in lower courts, an idea that could have some bipartisan support.
“I have a huge one in the city of Buffalo – they don’t have enough judges. There is a long line before you can go to court because they don’t have enough. So we can expand it, ”Senate Majority Leader Charles Schumer
Chuck Schumer Permanent Capitol Fence Proposal Provides Bipartite Pushback Immigration Reform Can’t Wait Psaki Expects DHS Nominee Mayorkas Will Lead Task Force To Reunite Divorced Families MORE (DN.Y.) said during a recent interview with MSNBCs Rachel Maddow
Rachel Anne Maddow Democrats weigh growing lower courts after Trump blitz Paul says Roberts’ absence ‘crystallizes’ argument against Trump’s impeachment Psaki expects DHS nominee Mayorkas to head task force to reunite separated families MORE.
Her. Dick Durbin
Dick Durbin Democrats Roads Expanding Lower Courts After Trump Blitz Biden Revives Congressional Immigration Struggle Biden Immigration Plans Hitting Early Snags MORE (D-Ill.), The majority whip and new chair of the Senate Judiciary Committee, also seemed open to the idea, saying a GOP senator had already raised the issue with him.
Interestingly, I had a Republican senator approach me about expanding the number of federal judges in his state, so there seems to be some sense that there [are] backlogs with federal judges, ”Durbin said.
Increasing the number of seats in court would require legislation in Congress, including GOP support in the Senate.
Her. John Cornyn
John Cornyn Democrats Roads Expanding Lower Courts After Trump Blitz Biden Revives Immigration Fight In Congress Trump’s Disapproval Faces Major Trouble In Senate MORE (R-Texas) has not discussed the matter with Durbin, but said he is willing to discuss more lower courts.
‘My state is a large, growing state and we have huge caseloads. … I’d like to have a conversation about that, ”said Cornyn.
Nominations only need a simple majority to be confirmed in the Senate after Democrats dropped the 60-vote filibuster for executive and lower court nominees in 2013 and Republicans abolished the same threshold for the Supreme Court in 2017. Republicans also changed the rules in 2019 to reduce the amount of discussion time for most executive nominees and district judges, a change that will now benefit Democrats.
But Democrats will have to decide what to do with blue strips – the sheet of paper that indicates whether home state senators support a candidate, support deemed crucial by the Trump administration.
Republicans ignored the blue slip for judges from circuit judges, infuriating Democrats and outside activists by shifting Trump choices over their opposition. In addition to determining whether they will follow the precedent set by the GOP, senators are under pressure from outside groups to ignore them in district court appointments as well.
“I think one of the tests is taking place in places where there is no Democratic senator or where there is a tradition of blue-skidding district judges, how hard we are to be willing not to accept bad faith for a blue slip and just the nominees drive through it, ”said Sen. Sheldon Whitehouse
Sheldon Whitehouse Democrats weigh growing lower courts after Trump blitz OVERNIGHT POWER: Biden signs series of orders to tackle climate change | Republicans Press Granholm Over Fossil Fuels During Confirmation Hearing Hawley Files Counter-Complaint Over Ethics Against Seven Democratic Senators MORE (DR.I.), a senior member of the Senate Judiciary Committee, at an Alliance for Justice event.
Durbin has not said how he will handle blue panties.
Biden begins his presidency with the fewest court vacancies since former President George HW Bush, according to FiveThirtyEight.
But Democrats are hinting that additional vacancies could emerge if judges who might have been wary of retiring during the Trump administration begin to move up in status, which is what Biden, who previously chaired the Senate Committee, put his weight on. would help to shape the courts.
Republicans last year publicly pressured GOP-appointed judges to resign as their control of the White House and the GOP majority in the Senate seemed increasingly jeopardized.
“There will be many vacancies. And I think there are a lot of judges, Democratic appointees who haven’t taken higher status while Trump was president, who will now, and … then we can fill it, ”said Schumer.
Federal courts have emerged as a growing lightning rod in recent years, as the Senate has been plagued by successive Supreme Court battles and Democrats are under increasing pressure from their grassroots to enact comprehensive judicial reforms.
Progressive parties have publicly put pressure on Justice Stephen BreyerStephen Breyer Democrats weigh growing lower courts after Trump blitz LIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary holds first briefing Sotomayor dissent on latest federal execution, calls it ‘justice on the fly’ MORE to retire so Biden can fill the seat while the Democrats control the Senate. Breyer, 82, is the oldest Supreme Court justice appointed by a Democratic president. Breyer was appointed by former President Clinton, while Justices Elena Kagan
Elena Kagan Democrats Weigh Growing Lower Courts After Trump Blitz Ex-Christie Assistant Approved by Supreme Court in ‘Bridgegate’ Scandal Pending Local Office LIVE INAUGURATION COVER: Biden Signs Executive Orders; press secretary to hold MORE first briefing and Sonia Sotomayor
Sonia SotomayorDemocrats weigh growing lower courts after Trump blitz Overnight Defense: Army sets new hair and grooming standards | DC National Guard chief says the Pentagon has limited its authority before the insurgency Colorado Calls Biden Not To Move Space Command Exclusive ‘Lucky’ Snippet: Vow of Black Woman on Supreme Court Was Biden’s Turning Point MORE were appointed by then President Obama and are 60 and 66 respectively.
Progressive members are also trying to pressure Democrats to expand the Supreme Court. Republicans refused to allow Garland, Obama’s last Supreme Court candidate, a hearing or a vote during an election year, but then set a new record in 2020 for how close to an election a Supreme Court choice has been confirmed with Justice Amy Coney Barrett
Amy Coney Barrett Democrats weigh in on expansion of lower courts after Trump blitz South Carolina Senate votes to ban most abortions in state Biden Begins Staff Committee to Study Supreme Court Reform: Report MORE, Trump’s third nominee.
Increasing the size of the Supreme Court would combine two politically controversial ideas, while the other would ignore the legislative filibuster by 60 votes, something Senate Democrats don’t currently have the votes for. Both the House and Senate would then have to pass legislation that changes the size of the court, which has had nine judges since 1869.
Biden has started a committee to look at reforms of the Supreme Court and the federal judiciary.
Schumer was noncommittal about the future of the Supreme Court, saying Democrats would wait to see what that group recommends.
“As for the Supreme Court, that’s the big one, and President Biden has set up this committee to issue a report in 180 days. We’re going to see what that committee says and go from there, ”said Schumer.
He added that while he waited to see the report, the Democratic caucus in the Senate was “torn” over the idea of adding seats to the Supreme Court. He would need the support of every member of the caucus to both ignore the filibuster and vote for expansion of the Supreme Court.
“You know, some are bad for it,” he said. “Some are against it.”