Judicial Nominations 2023 – Year in Review

Last year, Democrats caught an unexpected break when they retained control of the U.S. Senate (and narrowly expanded their majority. This has allowed Democrats to confirm a number of stalled nominees from the previous Congress and continue an increase in the number of confirmations from the previous two years (all numbers are drawn from the Federal Judicial Center). While Democrats have had a number of successes on the judicial nominations front this year, work remains if they are to match President Trump’s numbers on the judiciary.

Nominations

In the first Congress of his presidency, Biden submitted 148 nominees to Article III courts to the Senate, of which 98 were confirmed.  In 2023, counting resubmissions from the previous Congress, Biden submitted 95 nominees to the Senate (and announced five more that are yet to be submitted). Biden particularly increased the number of district court nominees announced from states with Republican senators. In his first two years in office, President Biden nominated twelve district court nominees from states with Republican senators (four each from Ohio and Pennsylvania, and one each from Indiana, Iowa, Mississippi, and Wisconsin).  In comparison, this year, President Biden has announced nineteen district court nominees from states with Republican senators (four from Florida, three each from Louisiana and Texas, two each from Indiana and Oklahoma, and one each from Kansas, Nebraska, South Carolina, Utah, and Wyoming).

Confirmations

In 2021, the Senate confirmed 40 Article III judges: 11 judges to the U.S. Court of Appeals; and 29 judges to the U.S. District Court.  The Senate subsequently confirmed 57 in 2022: 1 to the Supreme Court; 17 to the Court of Appeals; and 39 to the District Courts.

In 2023, the Senate confirmed 69 Article III judges: 11 judges to the U.S. Court of Appeals; and 58 to the District Courts.  While this continues an upwards trajectory from the previous two years, it nonetheless leaves Biden short of the total number of confirmations that Trump achieved by this point in his Presidency.

Withdrawal

From the previous Congress to this one, a few judicial nominees did not make the cut for renomination. Eastern District of Wisconsin nominee William Pocan had been blue-slipped by GOP Senator Ron Johnson, despite Johnson having previously signed off on him.  With Johnson narrowly re-elected and Democrats not changing the district court blue slip policy so far, Pocan was not resubmitted.

Northern District of New York nominee Jorge Rodriguez was also not renominated but as the judge he was nominated to replace, Judge David Hurd, declined to take senior status, expressing opposition to Rodriguez not being a Utica-based practitioner.

Furthermore, Tenth Circuit nominee Jabari Wamble was also not renominated, instead being resubmitted for a district court seat in Kansas, before withdrawing his name from that seat as well on the heels of an unfavorable ABA review.

The most high-profile loss, for the White House, however, was that of First Circuit nominee Michael Delaney, who withdrew his nomination in the face of bipartisan opposition relating to his conduct in litigation involving an allegation of sexual assault. A replacement nominee, Seth Aframe, currently remains pending before the Senate.

Diversity

The Biden Administration has continued its focus on prioritizing women and racial/ethnic minorities for court seats, seeking to do so to offset the lack of diversity in the nominees of previous administrations.  They have also continued to pick nominees from backgrounds that are traditionally less likely to become judges, including public defenders, and civil rights attorneys.

However, the Administration, in drawing more nominees from states with Republican senators, has nominated more “traditional” nominees as well, with the eight new appellate nominees being submitted in 2023, including five men and three women, and three white men being nominated this year, the same number of white appellate nominees submitted in the entire previous Congress.

Overall Assessment

Despite a narrow 50-50 margin in the Senate last Congress, Democrats were able to largely keep pace with the Trump Administration’s confirmation numbers.  Nonetheless, the narrow margin meant that a large number of liberal nominees remained stuck waiting for final votes. The slightly-wider margin that Democrats have this year has allowed almost all the stalled nominees to be confirmed, despite opposition to a number of them from Sen. Joe Manchin.  As such, the Biden Administration has largely cleared the backlog of stalled nominees from 2022, with only a handful left to be confirmed. Additionally, after the previous Congress focused almost entirely on states without Republican senators, the White House has focused more aggressively on those states this year, naming nominees in a number of those seats. Overall, the White House has managed to keep pace with confirmations from previous years and is likely to exceed confirmation numbers achieved by previous Democratic presidents although it remains to be seen if he can match President Trump’s numbers.

29 Comments

  2. Ethan's avatar

    @Harsh,

    Happy New Year and thank you so much for creating content for us to discuss! I’ve been thinking that I comment about switching to Substack so frequently that it might be annoying (I type this as I am having to re-type this comment after WordPress made me log in multiple times after I clicked “Reply” the first time I typed it up).

    I wondered if the logistics of switching was what was holding you back from doing it but luckily I found that Substack has a guide on how to transfer your blog over from sites such as WordPress and Tumblr: https://on.substack.com/p/switch-blog

    No platform is perfect but the thing I like about Substack the most is that comments can be edited and it is much easier to see which comment a particular in-line reply is directed at.

    Liked by 1 person

  3. raylodato's avatar

    Today is the 4th anniversary of the second oldest vacancy among Article III judgeships. There are 4 vacancies that predate Biden’s inauguration, and only 2 have nominees.

    IT (Gordon vacancy)—3/22/19. Wang has been nominated.

    EDWI (Griesbach vacancy)—12/31/19. RonJo pulled his blue slip for the first nominee and despite the circulating of new names, there’s been no new nomination.

    MDAL (Brasher vacancy)—2/21/20. No nominee and given Tuberville, probably won’t be.

    SDFL (Moreno vacancy)—7/12/20. Leibowitz has been nominated.

    As I’ve said, I’ve given up trying to predict when Schumer will schedule votes. I thought for sure Wang and Laroski would be a package deal that Republicans could agree to voice vote at the end of the session, but no.

    If I had to guess, I’d say that the MDAL vacancy will still be there at the time of the presidential election, although it’s possible EDWI will be, too. Johnson is a loose cannon and can’t be relied upon to produce predictable behavior. I thought Leibowitz had a fairly good hearing and given his support from Rubio and R. Scott, he should be easily confirmed when and if Schumer puts him on the agenda.

    Btw, did everyone see Jen Bendery’s article on Biden’s confirmation record?
    https://www.huffpost.com/entry/joe-biden-federal-judges-diverse_n_658a1541e4b014ec45a26a9d#

    She cited some stats from Russ Wheeler that during Trump’s term, there were a median of 19 votes against district court nominees, and under Biden, the median is 44. I get that this is a huge constraint on efficiently confirming judges, but as others have noted, they could 1) schedule more than one vote on Monday; 2) work later on Thursday (and prioritize cloture votes for CCA nominees then); and 3) work on Fridays.

    Anyways, Happy New Year to everyone here! Here’s to health and success in 2024 and, of course, lots more confirmations.

    Liked by 1 person

    • Frank's avatar

      Thank you for sharing that article. Working on Fridays is not an option since senators wish to return home to see their families, and in a similar sense is why there is only one vote on Monday and an early end to Thursday. However, if the Democrats lose the Senate next year, I’d still expect at least the remaining non-controversial nominees to be confirmed (not as confident on the controversial ones) in the lame duck.

      On another note, I know some have been thinking about who will not be renominated by Biden next year. In this order, here is who I’m thinking will not be renominated
      1: Scott Colom (no blue slip from Hyde-Smith)
      2: Colleen Holland (issues with background check)
      3: Charnelle Bjelkengren (Doesn’t know basic constitutional law)
      4: Todd Edelman (issues with a profound lack of toughness on crime costs him Manchin’s vote plus at least one other Dem)

      Anyone I miss?

      Liked by 1 person

  6. Joe's avatar

    Happy New Year to all! I have enjoyed my time here on the blog interacting with each of you.

    Wishing for many more retirements the next few months so Biden can continue nominating center left and liberal leaning judges.

    Liked by 1 person

  7. keystone's avatar

    They set a preliminary hearing date of Wednesday, Feb 7 for Ian Cramer. I assume Senator Cramer will be out for at least part of that first week of Feb if not the whole week.

    I could see then targeting that week for some of the more contentious nom votes.

    Liked by 1 person

    • Dequan's avatar

      I’m happy now that Bernie is the senior senator, he has changed the setup from everybody getting an equal number of members on the commissions him getting 3 compared to 2 & 2. I feel much more confident in getting a proven progressive with that structure than the wait was with Leahy as the senior senator. I would expect a public defender, a union attorney or perhaps a disabled, woman’s rights or LGBT rights attorney if I had to guess.

      Like

  9. Jamie's avatar

    Who are the favorites for the CD IL seat? It’s located in Peoria, and the magistrate there is Jonathan Hawley. I can’t seem to find too much information about his political background (other than he was a federal defender). I don’t know if he is related to Josh Hawley, and certainly hope he doesn’t share his political views…

    Liked by 1 person

  10. CJ's avatar

    I have a cool idea for this year. Considering we no idea what will happen with the elections in November, we should make predictions on judges we think will assume senior status in 2024 and see how many we get right throughout the year.

    Liked by 1 person

  11. raylodato's avatar

    I have a different 2024 prediction @CJ: There will be enough senior status judges who permanently retire (or are retired by nature) in the first 6 months of the year, some from courts that rely heavily on senior judges, that there will be a renewed push for adding judgeships at the district and appellate levels.

    Not saying that this will be successful–in fact, it probably won’t be–but it will put the issue on the agenda in a more serious way than it has been.

    Like

    • CJ's avatar

      I never thought of that, but that’s an interesting point. I don’t know the last time there was a push to increase the number of judgeships on the federal bench (other than the Supreme Court), I know that the number of judgeships did dramatically increase in the 1970s and 1980s. But with so such political division, I don’t think the number of judgeships will change any time soon, even if there is push for it.

      Like

  12. CJ's avatar

    For Appeals Court Judges, here are the Judges I predict will go senior, and some could possibly go senior in 2024.

    Roger Gregory (4th CCA) He is an active member of the liberal majority of the 4th CCA, and I feel like there is a chance he goes senior, especially considering that Judge King didn’t, and Gregory was nominated on an election year himself.

    James Andrew Wynn (4th CCA) could possibly go senior too.

    Carl Stewart (5th CCA) Being one of the only liberal judges on the hyper-conservative 5th CCA and turning 74 this year, I doubt he would want to wait for the next Democratic president to go senior, as he knows hyper-conservative a majority of the GOP nominees to the 5th CCA are, and likely wouldn’t want to risk his seat flipping. Also, he’s from Louisiana, and the Louisiana Senators have worked surprisingly well with Biden to find judicial nominees for both District Courts and the 5th CCA.

    James Graves (5th CCA) could also go senior too, and since he’s from Mississippi, that could give Scott Colum shot.

    Karen Moore or Eric Clay, or both (both 6th CCA)

    Ilana Rovner (7th CCA) There’s a chance with her going senior in 2024, as despite being put on the bench by a GOP president (Bush Sr.), she is liberal leaning, and she’s also turning 86 this year. However she might stay loyal to the party that put her on the bench (similar to Jose Carbranes on the 2nd CCA) and go senior under a GOP president.

    Kim McLane Wardlaw (9th CCA) Considering that Wardlaw is a very liberal judge, I would be shocked if she doesn’t go senior this year. There is a chance that Ronald Gould and Johnnie Rawlinson go senior in 2024, but I feel like the chance is highest with Wardlaw.

    Scott Matheson (10th CCA) Possible due to age and the fact the Utah Senators agreed with Biden on a District Court nomination.

    Charles Wilson (11th CCA) Considering that he has written so many dissents from the Court’s conservative majority in the last 4 years, he probably wants his seat to stay on the liberal wing of the Court.

    Some of these, I’m pretty confident about, some are just possibilities for 2024.

    Liked by 1 person

    • Dequan's avatar

      @CJ

      I would more or less agree with your list with the exception of Johnnie Rawlinson who wants to hand pick her successor & probably not Scott Matheson who I haven’t heard a peep of about wanting to step down. All the others on your list I could see happening. I would probably add one if not two judges on the federal circuit to my list as well.

      Now if you amend the wording of your hypothetical to just a vacancy for whatever reason, not just senior status, I could certainly see some leaving for health reasons or death. With the age of some of the circuit court judges, it’s always a bad bet to say we will go a full year without one leaving their seat for one of those reasons.

      Like

  13. tsb1991's avatar

    Not sure if this was mentioned, but Edwards (WDLA) got his commission on 12/22. With the holidays past us now, maybe we’ll see some commissions handed out this week, including Hall (DDE), since her predecessor has now gone senior.

    In other possible judiciary news this week, with the President’s nominations last month for several red states, they should be set for a 1/17 hearing. Hopefully we get nominees tomorrow for the next possible hearing on 1/31.

    There’s also going to be three pro forma Senate sessions this week (typically there’s only two held in a week if the Senate’s out the entire week). There’s the normal ones today and Friday (since they are done every three days), but the Senate is holding a pro forma on the 3rd to officially convene the 2nd session on this Congress. Not sure how brief that session is, I believe that’s the date any pending nominations get sent back to the White House. If it’s only a pro forma session being held (as they barely last a minute), I’d think the White House re-nominates everyone when the Senate returns on the 8th.

    Like

    • Dequan's avatar

      I was thinking the other day about will we see a new batch this week so I looked at the 2024 calendar. It doesn’t matter if we get new nominees this week or next week, they would be in the same SJC hearing because of a 2 week recess in February. So there’s a chance we get another batch next week but it won’t result in a missed hearing even if so.

      Like

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