We’re a week into the Biden Administration, and, so far, things are off to a slow start, at least on the confirmation front.  Unlike the relatively swift pace of confirmations that kicked off the Bush and Obama Administrations, the Senate has, thus far, confirmed just four nominations, matching the pace set under President Trump.  What has moved fast, in contrast, is the pace of judicial vacancies, as a total of 17 federal judges (1 circuit; 16 district) have either moved to senior status or announced their departures in the past week.  With the number of judicial vacancies growing rapidly, it’s worth asking when the White House will start nominating judges.

The process before a nominee is sent to the senate is fairly extensive.  For district court judges, it typically starts with a recommendation made by a home-state senator or representative.  Some senators will solicit applications through a public process, while others recommend based on references or pre-existing relationships.  The Biden Administration has instructed Democratic Senators to submit recommendations for existing vacancies by January 19.  While not many senators have met that deadline, it’s safe to say the White House has at least a few names to begin considering.

After the recommendation, the nominee is submitted to the Department of Justice for vetting, where the Office of Legal Policy reviews the nominee’s background, character, and experience.  This process can be lengthier or shorter depending on the nominee, but will typically take at least a few weeks.  Simultaneous to this process, the nominee will also undergo review by the Federal Bureau of Investigation.

If multiple candidates for a vacancy go through the vetting process, the White House must select who will be the primary candidate.  Assuming that no issues have arisen during the vetting process, the nominee can then be formally announced and submitted to the Senate.

One wrinkle is that most Administrations (barring only the second Bush and the Trump Administrations) would submit their nominees to the ABA for evaluation before sending the nominee to the Senate.  The Biden Administration, to my knowledge, has not made any announcement as to whether they will participate in the ABA pre-nomination vetting process.  If they do so, the ABA process can further delay a nomination being sent to the Senate.  Even if they don’t, the process is still likely to take a couple of months, at the fastest.

In other words, assuming senators have complied with the White House’s request and have submitted their recommendations by January 19, we can expect nominees coming out in March and April.

While this may seem like a long time, March is actually relatively fast for Presidents to nominate their first judges.  President Carter nominated his first district court judge on March 29th of his first year, and his first appellate nominee on August 16.  President Reagan’s first nominees hit the Senate on July 1st of his first year, and, while President George H.W. Bush renominated a few of his predecessor’s picks in February, he did not make his own nominations until August 4.  Similarly, President Clinton’s first lower court nominations were made on August 6 of his first year.  President George W. Bush got out his first nominees in May, while President Trump got his first appellate nominee, Judge Amul Thapar, to the Senate on March 21, 2017.  Surprisingly, despite criticism for the slowness of his nomination pace, President Obama got his first nominee to the Senate the fastest in modern history, nominating Judge David Hamilton to the Seventh Circuit on March 17, 2009.

Nonetheless, it’s possible that President Biden’s appellate nominees may be announced sooner, as the vetting process on them may have begun before January 19.  As such, depending on the vetting process, we may well see some nominees to the appellate seats as early as mid to late February.

At the end of 2020, as the 116th Congress came to an end, it sent back around thirty judicial nominations unconfirmed to President Trump.  Now, as the Biden Administration prepares to take office, it faces a critical question: how many of them, if any, should they renominate to the federal bench.

This is a question facing every incoming Administration, as the old one almost inevitably leaves some judicial nominees unconfirmed.  While putting forward nominees from the prior administration can help with judicial dealmaking and efficiency, it also risks upsetting the President’s base.  So far, no Administration has chosen to renominate all of their predecessor’s pending judges, instead making that determination on an ad hoc basis.

Johnson to Nixon

At the end of the Johnson Administration, for example, two Supreme Court nominees (Abe Fortas to be Chief Justice; and Homer Thornberry to be Associate Justice); one circuit court nominee (Barefoot Sanders for the D.C. Circuit); and three district court nominees (David Bress to District Court for the District of Columbia; Cecil Poole to the Northern District of California; William Byrne to the Central District of California) were left unconfirmed.  President Nixon chose not to renominate any of the Johnson holdovers at the outset of his Administration, instead picking the following:

• Judge Warren Burger to be Chief Justice of the Supreme Court
• George MacKinnon to the D.C. Circuit
• Barrington Daniels Parker to the District Court for D.C.
• Judge Gerald Levin to the Northern District of California
• Judge David Williams to the Central District of California

However, in 1971, Nixon did choose to nominate Byrne to a different seat on the Central District of California, where he served until his death in 2006.

Ford to Carter

For his part, after the resignation of Nixon, President Ford largely maintained the same nominees.  However, after his own loss in 1976, Ford had two appellate nominees and eight district court nominees pending before the U.S. Senate.  President Carter chose not to renominate any of the ten.  However, he did later nominate Richard Bilby, who Ford had unsuccessfully put up for a Ninth Circuit seat, for the District of Arizona, where he served until his death in 1998.

Carter to Reagan

At the end of the Carter Administration, the Senate left four appellate nominees and twelve district court nominees pending.  On January 1, 1981, Carter appointed one of the pending nominees, Judge Walter Heen, to the District of Hawaii using a recess appointment.  For his part, President Reagan declined to renominate Heen, letting his appointment expire at the end of the year.  He did, however, renominate two other judges:

• I. Leo Glasser for the Eastern District of New York
• John Sprizzo for the Southern District of New York

Reagan to Bush

Perhaps because it was a transition between two Presidents of the same party, President George H.W. Bush was more open to renominating his predecessor’s nominees.  At the end of his term, President Reagan left seven appellate nominees pending:

• Judith Richards Hope for the D.C. Circuit
• Stuart Summit for the Second Circuit
• Jacques Wiener for the Fifth Circuit
• Ferdinand Francis Fernandez for the Ninth Circuit
• Pamela Rymer for the Ninth Circuit
• Guy Hurlbutt for the Ninth Circuit
• Susan Leibeler for the Federal Circuit

Bush chose to renominate three of the seven (Wiener; Fernandez; and Rymer), who were all confirmed.  To fill the other seats, Bush chose Clarence Thomas, John Walker, Thomas Nelson, and Jay Plager respectively.

Reagan also left ten district court nominees pending:

• Howard Levitt for the Eastern District of New York
• James McGregor for the Western District of Pennsylvania
• Adriane Dudley for the Virgin Islands
• Marvin Garbis for the District of Maryland
• Shannon Mason for the Eastern District of Virginia
• Melinda Harmon for the Southern District of Texas
• Robert Bonner for the Central District of California
• Vaughn Walker for the Northern District of California
• William Erickson for the District of Colorado
• Donald Abram for the District of Colorado

Of those ten, Bush chose to renominate five (Garbis; Dudley; Harmon; Bonner; Walker).  All of them except for Dudley were confirmed.   For the other seats, Bush nominated the following:

• Carol Amon for the Eastern District of New York
• Donald Lee for the Western District of Pennsylvania
• Rebecca Beach Smith for the Eastern District of Virginia
• Daniel Sparr for the District of Colorado
• Edward Nottingham for the District o Colorado

Bush also chose to renominate McGregor to a different seat on the Western District of Pennsylvania in 1990, where he was ultimately blocked by conservative opposition.

Bush to Clinton

At the conclusion of the Bush Administration, ten appellate nominees and forty two district court nominees were left unconfirmed, a significantly higher number than previous Administrations.  Of these fifty two nominees, President Clinton renominated none of the appellate nominees and just two of the district court nominees.

• David Trager for the Eastern District of New York
• Joanna Seybert for the Eastern District of New York

However, later in the Administration, Clinton nominated an additional two nominees from the leftover list to different seats.

• George O’Toole for the District of Massachusetts
• Richard Casey for the Southern District of New York

Of the remaining forty eight nominees not renominated under Clinton, thirteen were renominated for federal judgeships by President George W. Bush.

• John Roberts for the D.C. Circuit (subsequently elevated to the Supreme Court)
• Franklin Van Antwerpen for the Third Circuit
• Jay Waldman for the Third Circuit (passed away before the Senate could act on the nomination)
• Terrence Boyle for the Fourth Circuit (never confirmed)
• Carlos Bea for the Ninth Circuit (Bea had been unsuccessfully nominated to the Northern District of California by H.W. Bush)
• William Quarles for the District of Maryland
• Leonard Davis for the Eastern District of Texas
• Andrew Hanen for the Southern District of Texas
• Percy Anderson for the Central District of California
• John Walter for the Central District of California
• Larry Hicks for the District of Nevada
• Ronald Leighton for the Western District of Washington
• James Payne for the Northern District of Oklahoma (jointly with the Eastern and Western Districts)

Clinton to Bush

Similar to George H.W. Bush before him, President Clinton faced an opposition Senate through his final term, and thus, a number of his appellate and district court nominees were left unconfirmed at the end of his term.  Specifically, the Senate did not process seventeen appellate nominees and twenty four district court nominees before the end of the 106th Congress.  In response, President Clinton appointed one of his appellate nominees, Roger Gregory to the Fourth Circuit in a recess appointment.

For his part, George W. Bush renominated three of Clinton’s appointments.  Specifically, Bush renominated:

• Judge Roger Gregory for the Fourth Circuit
• Judge Legrome Davis for the Eastern District of Pennsylvania
• Judge David Cercone for the Western District of Pennsylvania

Additionally, later in his tenure, President Bush renominated an additional two stalled Clinton appellate nominees as part of an agreement with Democrats:

• Judge Helene White for the Sixth Circuit
• Judge Christine Arguello for the Tenth Circuit (nominated to the District of Colorado)

Bush to Obama

At the end of the Bush Administration, the Senate left ten appellate and twenty district court nominees unconfirmed.  Of the thirty pending nominees, President Obama renominated just one: Marco Hernandez for the District of Oregon.

However, later in his Administration, Obama nominated another two of the stalled Bush nominees to the federal bench:

• Judge John Tharp for the Northern District of Illinois
• William Jung for the Middle District of Florida (never confirmed)

Incidentally, Obama also renominated three stalled Clinton appointees:

• Judge Andre Davis for the Fourth Circuit
• Judge James Wynn for the Fourth Circuit
• Judge Dolly Gee for the Central District of California

Obama to Trump

Due to a dramatic slowdown of confirmations in the last two years of his Presidency, President Obama saw 59 judicial nominees left pending before the Senate, more than any other President in recent history.  This list included one nominee to the U.S. Supreme Court, seven to the courts of appeal, and forty four nominees to the district courts.

Over the course of his term, President Trump renominated sixteen of these nominees, more than any other president in the last fifty years.  Specifically, he renominated:

• Judge Mary McElroy for the District of Rhode Island
• Judge Gary Brown for the Eastern District of New York
• Diane Gujarati for the Eastern District of New York
• Judge John Milton Younge for the Eastern District of Pennsylvania
• Judge Susan Paradise Baxter for the Western District of Pennsylvania
• Judge Marilyn Horan for the Western District of Pennsylvania
• Judge Robert Colville for the Western District of Pennsylvania
• Judge Stephanie Gallagher for the District of Maryland
• Donald Coggins for the District of South Carolina
• Karen Gren Scholer for the Northern District of Texas (previously nominated to the Eastern District)
• James Hendrix for the Northern District of Texas
• Walter Counts for the Western District of Texas
• David Nye for the District of Idaho
• Kathleen O’Sullivan for the Western District of Washington (announced but withdrawn before confirmation)
• Scott Palk for the Western District of Oklahoma
• William Jung for the Middle District of Florida

Trump also renominated four nominees who stalled under President Bush (not including Jung who is accounted for above).

• Thomas Marcelle for the Northern District of New York (never confirmed)
• Colm Connolly for the District of Delaware
• Thomas Farr for the Eastern District of North Carolina (never confirmed)
• David Novak for the Eastern District of Virginia

Trump to Biden

President Trump leaves office with twenty six unconfirmed judicial nominees, including one appellate nominee (Judge Raul Arias-Marxuach to the First Circuit); and 21 district court nominees.  These nominees are largely focused on two states: New York, which has six pending nominees; and California, which has ten.  Outside those two states, the remaining five unconfirmed district court picks are:

• Judge Barbara Jongbloed for the District of Connecticut
• Jennifer Togliatti for the District of Nevada
• Fred Federici for the District of New Mexico
• Brenda Saiz for the District of New Mexico
• Edmund LaCour for the Middle District of Alabama

Of those five, three: Federici, Saiz, and LaCour, were blocked by Democratic home state senators, and, as such, would be unlikely to be renominated in a Biden Administration.  Jongbloed is a Democrat chosen by Senators Blumenthal and Murphy who cleared the Judiciary Committee unanimously before stalling on the floor.  However, she’s also 61 years old and relatively middle-of-the-road.  Without a Republican Administration, it is more likely that the Senators push for a younger candidate rather than seeking to renominate Jongbloed.  This leaves Togliatti as the most likely contender in this group for renomination.

In addition, the New York and California groups are packages that include a number of Democrats, who could all potentially be renominated.  This includes:

• Jennifer Rearden for the Southern District of New York
• Hector Gonzalez for the Eastern District of New York
• Judge Steve Kim for the Central District of California
• Judge Sandy Leal for the Central District of California
• Knut Johnson for the Southern District of California
• Shireen Matthews for the Southern District of California

In addition, Biden may look to the thirty five Obama nominees who were not renominated by Trump.  Of those, many are likely too old to be considered for nomination today, but the following could be considered for current vacancies:

• Inga Bernstein for the District of Massachusetts (Bernstein turns 60 this year so she may be passed over for a younger candidate)
• Julien Neals for the District of New Jersey (will almost certainly be renominated)
• Anne Traum for the District of Nevada (will likely be renominated)
• Beth Andrus, Kathleen O’Sullivan, and J. Michael Diaz for the Western District of Washington (will likely be renominated)
• Regina Rodriguez for the District of Colorado

Additionally, the following could be considered for renomination if vacancies open:

• Rebecca Ross Haywood for the Third Circuit
• Judge Lucy Koh for the Ninth Circuit or the Federal Circuit
• Stephanie Finley for the Western District of Louisiana
• Judge E. Scott Frost for the Northern District of Texas
• Judge Irma Ramirez for the Northern District of Texas
• Edward Stanton for the Western District of Tennessee
• Clare Connors for the District of Hawaii
• Judge Suzanne Mitchell for the Western District of Oklahoma
• Judge Patricia Barksdale for the Middle District of Florida
• Judge Philip Lammens for the Northern or the Middle Districts of Florida

As a bottom line, every President since Nixon has renominated at least one of their predecessor’s failed nominees for the federal bench.  As such, it would not be surprising to see at least a few unconfirmed nominees from the past two Administrations put forward again by President Biden.