Democrats are considering how to reshape the federal judiciary after Republicans have acted at record speed to confirm conservative judges over the past four years.
Old President Trump
Donald TrumpKelli Ward rejects Arizona Republican Party race audit request Gun sales boom amid pandemic uncertainty, Biden’s vote for gun reform Top Trump impeachment lawyer, Bowers leaves team: reports MORE, aided by a Republican-controlled Senate, set the second fastest pace ever recorded for judicial appointments, allowing him to stack the courts with choices, including three Supreme Court judges, who were overwhelmingly white, younger and ideologically conservative.
President Biden has 50 vacancies to fill: three in the influential circuit courts and 47 in the district courts. That number will eventually grow, including an opening in the powerful DC circuit court once Merrick Garland
Merrick Brian GarlandDemocrats evaluate expansion of lower courts after Trump Biden blitz starts recruitment commission to study Supreme Court reform: report More than 40 lawmakers sign letter urging Merrick Garland to prioritize the abolition of the death penalty MORE is confirmed as Attorney General.
While the Democrats are plotting 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 Buffalo – they don’t have enough judges. There is a long line before you get to the court because they don’t have enough. So that we could expand that ”, the majority leader in the Senate Charles Schumer
Chuck SchumerP Capitol’s permanent fencing proposal sparks bipartisan resistance Immigration reform can’t wait Psaki expects DHS nominee Mayorkas to head the task force to bring separate families together MORE (DN.Y.) said during a recent interview with MSNBC’s Rachel Maddow
Rachel Anne MaddowDemocrats evaluate the expansion of the lower courts after Trump’s blitz Paul says Roberts’ absence ‘crystallized’ the argument against Trump’s impeachment Psaki expects DHS nominee Mayorkas to lead the task force to bring separate families together MORE.
Sen. Dick Durbin
Dick DurbinDemocrats evaluate the expansion of the lower courts after Trump blitz Biden reignites immigration struggle in Congress. Biden’s immigration plans hit initial hurdles MORE (D-Ill.), The majority leader and chairman of the Senate Judiciary Committee, also seemed open to the idea, saying that a Republican senator had already raised the issue with him.
“Interestingly, I had a Republican senator who approached me about expanding the number of federal judges in his state, so there seems to be some feeling that [are] delays in the portfolios of federal judges, ”said Durbin.
Expanding the number of seats in courts would require legislation in Congress, including support from the Republican Party in the Senate.
Sen. John Cornyn
John CornynDemocrats evaluate the expansion of the lower courts after Trump’s Blitz. Biden reignites immigration fight in Congress Trump’s censorship faces tough adversities in the Senate MORE (R-Texas) has not discussed the matter with Durbin, but said he is willing to discuss more trials in lower courts.
“My state is large, growing, and we have a huge number of cases. … I would be open to having a conversation about it, ”said Cornyn.
The nominations need only a simple majority to be confirmed in the Senate after Democrats rejected the 60-vote obstruction for nominees to executive and lower courts in 2013 and Republicans got rid of the same limit for the Supreme Court in 2017. Republicans they also changed the rules in 2019 to reduce the debate time for most of the district’s executive nominees and judges, a change that will now benefit Democrats.
But Democrats will need to decide what to do about blue tickets – the sheet of paper that indicates whether state senators support a nominee, support that was considered critical before the Trump administration.
Republicans ignored the blue slip for regional court judges, infuriating Democrats and outside activists by moving Trump’s choices over his opposition. In addition to determining whether to follow the Republican precedent, senators are under pressure from outside groups to ignore them in the district court nominations as well.
“I think one of the tests is in places where there is no Democratic senator or where there is a tradition of losing district judges, as we are prepared to be tough on not accepting bad faith failures to return a blue slip and just leading the nominees ”Said the senator. Sheldon Whitehouse
Sheldon WhitehouseDemocrats evaluate expansion of lower courts after Trump’s blitz ENERGY OF THE NIGHT: Biden signs a series of orders to tackle climate change | Republicans pressure Granholm on fossil fuels during confirmation of Hawley’s hearing files ethics counter-complaint against seven Democratic senators MORE (DR.I.), a senior member of the Senate Judiciary Committee, during an Alliance for Justice event.
Durbin did not say how he would handle the blue papers.
Biden is starting his presidency with the fewest vacancies since ex-President George HW Bush, according to FiveThirtyEight.
But Democrats are hinting that additional vacancies may emerge, as judges who might have been afraid to retire during the Trump administration begin to assume senior status, which would help Biden, who previously chaired the Senate Judiciary Committee, to expand their ability to shape the courts.
Republicans publicly pressured Republican-appointed judges to step down last year, as their control of the White House and the majority of the Republican Party in the Senate seemed increasingly and precisely in danger.
“Many vacancies will appear. And I think there are a lot of judges, appointed Democrats who did not assume senior status while Trump was president, who will now do so, and … so we can fill it, ”said Schumer.
Federal courts have emerged as a growing lightning rod in recent years, as the Senate has been hit by consecutive Supreme Court fights and Democrats have faced increasing pressure from their base to pass broad judicial reforms.
Progressive has publicly pressured justice Stephen BreyerStephen BreyerDemocrats evaluate the expansion of the lower courts after Trump’s blitz LIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary gives Sotomayor first dissident briefing on the latest federal execution, calling it ‘immediate justice’ MORE retire so that Biden can occupy the seat while the Democrats control the Senate. Breyer, 82, is the oldest Supreme Court judge appointed by a Democratic president. Breyer was appointed by former President Clinton, while judges Elena Kagan
Elena KaganDemocrats evaluate the expansion of the lower courts after Trump blitz Christie’s former assistant released by the Supreme Court in the ‘Bridgegate’ scandal running for a local office LIVE INAUGURATION COVERAGE: Biden signs executive orders; press secretary gives first briefing MORE and Sonia Sotomayor
Sonia SotomayorDemocrats evaluate expansion of lower courts after Blitz Trump Overnight Defense: Army details new hair and appearance patterns | DC National Guard Chief Says Pentagon Restricted His Authority Before Rioting | Colorado asks Biden not to move the Space Command’s exclusive ‘Lucky’ section: A black woman’s vote on the Supreme Court was Biden’s tipping point MORE were nominated by then President Obama and are 60 and 66 years old, respectively.
Progressives are also trying to increase pressure on Democrats to expand the Supreme Court. Republicans refused to give Garland, Obama’s last Supreme Court nominee, an audience or vote during an election year, but set a new record in 2020 for how close to an election a Supreme Court choice was confirmed. for Justice Amy Coney Barrett
Amy Coney BarrettDemocrats evaluate expansion of lower courts after Trump blitz South Carolina Senate votes to ban most abortions in Biden state begins a staff commission to study Supreme Court reform: report MORE, Trump’s third candidate.
Increasing the size of the Supreme Court would combine two politically controversial ideas, with the other being to ban legislative obstruction of 60 votes, something Senate Democrats have no votes to do at the moment. The House and Senate would then have to pass legislation changing the size of the court, which has had nine judges since 1869.
Biden created a commission to examine reforms of the Federal Supreme Court and the federal judiciary.
Schumer did not commit to the future of the Supreme Court, saying that Democrats would wait to see what the group would recommend.
“As for the Supreme Court, this is the big one, and President Biden set up that committee to present a report in 180 days. Let’s see what this commission says and go from there, ”said Schumer.
He added that while waiting to see the report, the Senate Democratic bench was “divided” with the idea of adding seats to the Supreme Court. He would need the support of all members of the caucus to prevent obstruction and vote to expand the Supreme Court.
“You know, some are very supportive,” he said. “Some are against it.”