John P. Collins: Biden Judicial Confirmation Recap and outlook on future vacancies

[In It to Win It]

John P. Collins
@prof_jpc

With the Senate back in session (if only for a week) and a Democratic majority in place for the 118th Congress, now seems like a good time to recap what the Biden administration and Senate have accomplished so far and what they can theoretically accomplish going forward. 1/x

Circuit judges: 25 confirmed so far, compared to 29 at this same point under Trump (although he saw only 1 more confirmed before the end of 2018). 5 nominees are awaiting floor votes, 2 need discharge votes, 3 need committee votes, and 2 need hearings (tomorrow maybe?). 2/x

There are 4 current or future vacancies without a nominee, 2 in Red states and 2 in Blue states. No new vacancies recently, but that could change in the coming weeks (more on that later).

District judges: 58 confirmed, compared to 53 at this point under Trump. 3/x

16 nominees are awaiting floor votes, 2 need discharge, 9 need committee votes, and 19 need hearings (including William Pocan and Jorge Rodriguez). That's roughly 6 hearings worth of district court nominees if you assume 3 per hearing. 4/x

There are 55 current and future district court vacancies without a nominee, which will take somewhere between 11 and 18 hearings to process. Speaking of which, there will likely be 3 more hearings this year: 11/15, 11/30, and 12/14 (so 2 circuit noms and 13 district noms) 5/x

A significant number of these district court vacancies are in Red states, so we will have to wait and see what Senator Durbin does with blue slips before we can accurately assess how many are likely to be filled. 6/x

So what does the rest of this year look like? Not sure! Having at least 50 seats eases some pressure to clear the decks before next year, and a 51st seat would actually make it easier to wait on some nominees like Dale Ho and Rachel Bloomekatz. 7/x

Btw, 51 D senators would make a huge difference. Under the current power sharing agreement, committees are evenly divided, and many nominees have deadlocked (a tie vote), which requires another motion and time-consuming roll call vote to send them to the floor. 8/x

Not so with a clear majority, which is why it might be easier to wait on some nominees. Their nominations will be returned and resubmitted, and the committee can revote with a majority. No discharge vote needed! 9/x

Whether the majority is 50 or 51, what does the landscape look like for judicial nominations in 2023/24? Starting with current circuit judges appointed by Democratic presidents, 16 are currently eligible to retire. 10/x

Of those 16, 6 are in Red states, 2 are in Purple states, and 6 are in Blue states (the other 2 are CAFC). Notably, one is Judge King (CA4), who rescinded his retirement after opposing the WH's preferred nominee. 11/x

Only one other D-appointed circuit judge will become eligible to retire in 2023 or 2024: William Kayatta (CA1). What about R-appointed judges? There are 25 R-appointed circuit judges currently eligible to go senior (3 more will become eligible in 2023 or 2024) . 12/x

So there's a ceiling of 44 new circuit vacancies, but we aren't likely to see a number close to that. Edith Jones, Jerry Smith, Paul Niemeyer et al. aren't going anywhere under a Democratic president. Several have terms as chief that extend beyond 2024, too. 13/x

With nearly every circuit judge eligible to retire over the next two years *already* eligible, we could see significant movement in the coming weeks, and that will help us understand the pace to expect in early 2023. More on district judges later! 14/14

Link to tweet

[SheltieLover]

1. Kicking for visibility

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2. Warnock will help unclog the Judiciary.

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3. Mahalo! So Important.. and Exciting! nt

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4. K&R for visibility.