Beltway Bulletin
President Biden’s First-Year Judicial Appointments By Dan Renberg and Cissy Jackson
A former senior Senate staff member and presidential appointee, Dan Renberg has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America. Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation.
One of the most anticipated—and sometimes most controversial—opportunities for a new president is filling vacancies on the federal bench under the appointments clause authority set forth in Article II, Section 2, Clause 2 of the Constitution. The Senate’s advice and consent role in confirming presidential appointments has, in recent years, contributed to the politicization of the process. It has also hindered efforts to authorize new judgeships despite overwhelming caseloads in many courts, as we noted in our November/December “Beltway Bulletin.” As the foremost national bar association devoted to the practice of federal law and the vitality of the federal court system, the FBA closely monitors the nomination and confirmation process as part of its mission to keep its members informed. The FBA maintains a neutral political stance, simply urging each president and congress to act promptly and responsibly in nominating and confirming nominees to the federal appellate and district courts. When President Biden took office, there were 46 vacancies on the federal bench. Since that time, additional vacancies have opened, and President Biden is filling them at a record pace. As of November 18, the full Senate has confirmed 28 of President Biden’s Article III nominees—more than any of his six predecessors saw confirmed in the same period of time. Senate Judiciary Committee Chairman Dick Durbin, D-Ill., has kept up with the administration’s aggressive pace of nominations, having already held hearings for 20 of the 34 pending nominees. With 73 current vacancies as of November 18 and 35 future vacancies announced, we can expect to continue to see multiple confirmations each week the Senate is in session, though the pace of naming and confirming nominees may slow as the White House moves to fill vacancies in states with one or both Republican senators. Although it has been sometimes disregarded in recent years, the Senate’s blue slip tradition affords individual senators the opportunity to singlehandedly block a nominee. According to the tradition, the Senate Judiciary Committee chairman sends a blue slip of paper to each home-state senator before scheduling a hearing for
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a nominee from his or her state. The senators indicate their support or opposition to the nominee on the blue slips and return them to the chairman. Some chairmen will not schedule a hearing on a nominee until both blue slips are returned. Thus, if a senator refuses to return a blue slip, that nominee’s confirmation process can be indefinitely stalled. The tradition does not require senators to explain the refusal to return a blue slip; thus, the real or perceived reason for doing so may depend on the eye of the beholder. In a New York Times interview in March 2021, Chairman Durbin said he intends to follow the blue slip tradition for district court nominees but warned that he will “keep an open mind” about revisiting it to prevent blue slips from being used “to perpetuate prejudice.” Sen. Durbin’s views on the importance of the blue slip tradition and its appropriate use may be tested in the coming months, as President Biden’s nominees are a historically diverse group. With his first slate of nominees, the president emphasized his belief that those who sit on the federal bench should reflect the diversity of our country in terms of both personal and professional backgrounds, and the president’s selections to date reflect a commitment to fulfilling that vision. Three-quarters of the nominees confirmed under President Biden are women; 28 percent are Black; 11 percent are Asian American; 11 percent are Latinx; and 3 percent are Native American. In addition, President Biden has appointed the first two openly LGBT women to circuit court seats. The Democratic majority in the Senate and the 2013 rules change that allows a simple majority vote to end debate on judicial nominations have been critical to the success of the president’s nominees, as 20 of the 28 nominees confirmed so far received 40 or more votes in opposition. Previously, where there was effectively a 60-vote requirement under the Senate’s cloture rules, these judges might not have been confirmed by the Senate at all, or at least not nearly as quickly. As the White House seeks to fill vacancies in states where Republican senators have the opportunity to block the president’s choices by withholding blue slips, and continued on page 10
