Time Is Running Out for the Senate to Confirm Biden’s Federal Judges

On the morning of June 24, 2022, I woke up, checked my phone and saw that nearly 50 years of legal precedent had fallen.

We’d heard it was coming, but that didn’t make reading the headlines any easier: That day, in a 6-3 ruling, the Supreme Court had overturned Roe v. Wade.

But SCOTUS didn’t stop there. Since 2022, the conservative supermajority — which includes three justices appointed by former President Donald Trump — has curtailed the Environmental Protection Agency’s regulatory authority, eliminated affirmative action in college admissions, struck down President Joe Biden’s student debt relief plan and granted Trump sweeping immunity from criminal liability. While some Democrats may be tempted to throw up their hands and shout, “How did we get here!?” legal scholars and political analysis have pointed out that the GOP has been playing the long game for decades — focusing its efforts and funds on gaining federal judicial seats.

That’s something that GOP backers readily admit themselves. “For conservatives, there has to be a long game,” Leonard Leo, GOP megadonor and executive vice president of the right-wing Federalist Society, told NPR in 2018. “What is important for conservatives is a court that will respect and enforce all the limits on governmental power and control contained in the Constitution.”

In addition to the three Supreme Court justices, Trump appointed nearly as many judges to courts of appeals in his four years as Barack Obama appointed throughout both of his terms. Overall, Trump filled more than 230 vacancies on federal courts — a quarter of currently active federal judges. Biden is now racing to secure as many judicial confirmations as possible from the Senate before his term ends. His number of confirmed appointees currently sits at 213, but given the Senate’s slim Democratic majority, that is expected to rise slightly.

As a result of Trump and Biden’s focus on the federal judiciary, whoever becomes president next will have the fewest number of vacancies to fill in more than 30 years. Still, with Election Day less than two weeks away, it’s worth diving into which judicial seats a future president might get to decide. The days of voters overlooking the federal judiciary are long over. District courts first hear the cases that eventually make their way to the highest court in the land. And, like Supreme Court justices, these judges serve their terms for life.

The Nitty Gritty

There are 45 current vacancies in the federal judiciary, including 16 with pending nominations. Another 22 judges have announced their plans to retire soon or take senior status, a semi-retirement option that allows them to reduce their caseload while still receiving the same salary. Senior positions are considered vacant and can be replaced with a new appointee, even if the judge continues to maintain a full caseload. Out of those 22 future vacancies, Biden has already put forth 12 pending nominees.

This means that if all nominees are confirmed before the next president takes office — something that appears unlikely, but more on that later — the incoming president could still have 39 seats to fill right off the bat. However, vacancy counts change frequently, and more judges might wait to announce their retirement or senior status until after the presidential election has been decided.

Members of the right already have their eyes on filling those seats. “On the date that he or she raises their hand, it might be a particular number, but in very short order, the number of vacancies available to be filled will increase, possibly quite significantly,” said Thomas Jipping, a senior legal fellow at the Heritage Foundation, the conservative think tank behind Project 2025.

The Senate needs 51 votes to confirm a president’s judicial nominee. Democrats currently have a razor-thin majority, if you include centrists like Sen. Joe Manchin and Sen. Kyrsten Sinema, who both switched their party affiliations to Independent while in office. If Republicans uniformly oppose a nominee, Democrats need unanimous support to push Biden’s picks through — a task that hasn’t always proven simple.

When the Senate returns on November 12, they’ll have just five weeks to work on confirming nominated judges before the next Congress takes office.

Appellate Courts

On the courts of appeals — higher than the district courts — there is one current vacancy and five upcoming vacancies.

Joseph A. Greenaway Jr., appointed by President Barack Obama, retired from his seat on the Third Circuit in June 2023. In January 2024, Biden nominated Adeel A. Mangi to take his place. A Pakistani American lawyer, Mangi would be the first Muslim to serve as a federal appellate judge. But despite a slew of accolades and an impressive track record of pro bono civil rights litigation, the Senate has not confirmed Mangi.

That’s because three Democrats have joined Republicans in opposing Mangi’s confirmation. Republicans have smeared Mangi with Islamophobic attacks and painted him as a “cop killer,” including Sen. John Kennedy (R-Louisiana), who outrageously asked the judicial nominee if he supported the attacks on 9/11. Sen. Ted Cruz (R-Texas), meanwhile, asked Mangi if he condemned Hamas. Facing fierce resistance and bad faith arguments, the path forward for Mangi’s confirmation now looks unclear.

The five upcoming vacancies are on the First, Third, Fourth, Sixth and 11th Circuits. Biden’s nominees for those seats include labor lawyer Karla Campbell and North Carolina Solicitor General Ryan Park Young, who, if confirmed, would be the first Asian American to serve on the Fourth Circuit.

The 11th Circuit’s purview includes Florida and Georgia, and the court has issued major decisions on voting laws — including, in 2005, striking down a voter ID law in Georgia. Last year, however, the court upheld a Florida law that introduced new voting restrictions — a ruling condemned by voting rights groups.

Southern District Courts

Since the Constitution requires the president to receive “advice and consent” from Senators on judicial appointments, Biden has struggled to find or confirm judicial nominees in Southern states where Republican senators have a stronghold. And the Senate Judiciary Committee currently will not convene a hearing for a district court nomination unless both home-state senators have approved the nominee, an unofficial policy known as the blue slip process.

That explains why there are seven current or upcoming vacancies on the Texas district courts, all lacking nominees. The Southern District of Texas, which has four vacancies, has overseen key cases on immigration law. Judge Andrew S. Hanen, a George W. Bush appointee who is vacating his position in January, was a major adversary to President Barack Obama’s immigration laws and issued multiple rulings that the Deferred Action for Childhood Arrivals program was unconstitutional. Slate has called Hanen “one of the most notoriously partisan conservatives in the federal judiciary.” However, like the rest of the Texas Southern District court, his seat lacks a replacement.

Biden is also struggling to fill four seats on Louisiana’s courts. Federal court administrators have flagged Louisiana’s Eastern District court with an “emergency” status, with too many cases and not enough judges to handle them. But Louisiana’s two Republican senators are stalling on recommending replacements, choosing instead to wait and see who will enter the White House in January.

Louisiana’s Eastern District court has overseen notable cases related to Cancer Alley, the heavily industrialized stretch of land between Baton Rouge and New Orleans, where predominantly Black residents bear a disproportionate burden of fossil fuel pollution. Last November, a judge dismissed complaints of racial discrimination brought by grassroots groups, who alleged the parish government had disproportionately permitted petrochemical plants in majority-Black districts.

Yesterday the court heard arguments over a motion filed by a civil rights group to relocate students from an elementary school in an area of Cancer Alley that has the highest risk of cancer from air pollution in the nation. The school, which primarily serves Black and Latino students, sits only a few hundred feet from a notorious synthetic rubber plant that emits chloroprene, a chemical scientists have linked to cancer and genetic mutations.

Blue District Courts

Many of Biden’s nominees are for courts in states with liberal senators, like California, New York, Washington, Oregon and Connecticut. But some of his selections for those courts have still faced pushback.

In June, Senate Democrats canceled a procedural vote for Mustafa Taher Kasubhai, who, if confirmed, would be the first Muslim to serve on Oregon’s federal district court. Republicans claimed he was too radical; Sen. Manchin has said he won’t support nominees without Republican support. In remarks on the Senate floor, Sen. Mitch McConnell claimed, “Judge Kasubhai also sounds like a committed Marxist.”

Another stalled confirmation has been in the case of Sarah French Russell, a Quinnipiac University law professor and former federal public defender, who Biden nominated to Connecticut’s district court. During Russell’s confirmation hearing, GOP senators criticized her for signing an open letter to Connecticut’s governor during the COVID-19 pandemic, calling on him to release from state prisons “all people who are incarcerated without having been convicted of any crime,” as well as immunocompromised and elderly people.

“In the absence of immediate and decisive action, incarceration will turn into a death sentence for many of our community members,” the letter stated.

This, apparently, was too radical a position for a potential federal judge to take. Russell’s nomination was returned to the president by the Senate in January 2024. There have been no further updates on Biden’s plans to fill that seat.