The Timing of Judicial Nominations – When Can We Expect the First

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.

10 Comments

  1. Why would the Biden administration only seek input from Democratic Senators to submit recommendations for existing vacancies? This would seem to be a departure from the norm of seeking input from both Senators regardless of party affiliation.

    Liked by 1 person

    • Due to the massive norm departures of the previous administration and Mitch McConnell’s Senate regarding judicial nominees, I would hope the Biden administration and the current Senate to ratchet it up a notch. I don’t think Mitch McConnell should have a veto over any judges appointed in the next two years.

      Liked by 1 person

  2. Pingback: What Can We Expect From the Early Batches of Biden Judges | The Vetting Room

  3. Biden will not submit any nominees to the ABA. Right-wingers have criticized the ABA for being too liberal, but the truth is that the ABA is a lackey for big corporate law firms. Yes, they have given low ratings for some right-wing lawyers in the past, but they have consistently rejected possible judicial nominees who did something other than represent large corporations or were prosecutors.
    Obama should have done this in 2009.

    Liked by 1 person

  4. I am happy Senate judiciary committee chairman Dick Durbin will not require Blue Slips for circuit court nominees (Just as Republicans did not require it for Trump nominees), however I wish they got rid of Blue Slips all together. They are not in the constitution & there is no reason why one senator should hold up a president’s nominee even getting a hearing, let alone an up or down vote.

    Liked by 1 person

    • Oh I fully expect Joe Manchin (or some other Democrat) to torpedo a handful of picks just to “prove their independence”. The Democrats should simply nominate the next one on the list. If the Democrats are smart they will nominate a couple judges at the start as bait so Manchin can get desired his pound of flesh out of his system early.

      Like

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