WASHINGTON — The Democratic-led Senate confirmed President Joe Biden’s 100th federal judge Tuesday, marking a milestone for the president and Majority Leader Chuck Schumer.
The two Democrats have made it a priority to reshape U.S. courts with judges who tend to be younger, liberal and more diverse — both in terms of race and ethnicity, as well as professional experience — than the current bench, a project aided by Democrats expanding their Senate majority in the 2022 midterm election.
On Monday, the Senate confirmed Cindy Chung to the 3rd U.S. Circuit Court of Appeals, making her the first Asian American to serve on that court. On Tuesday, the Senate voted 54-45 to make Gina Méndez-Miró a district court judge in Puerto Rico; the nomination passed a key test vote that indicates she has the necessary support to be confirmed and will become Biden’s 100th confirmed judge.
She will be Biden’s 69th confirmed district court judge. He has also secured Senate approval for 30 circuit court judges and one Supreme Court justice: Ketanji Brown Jackson.
“Appointing 100 judges has already had a major impact on the judiciary — and it puts President Biden on track to name a transformational 200 judges before the end of this term,” Ron Klain, Biden’s former chief of staff, who departed last week, told NBC News. “Just as important as the quantity of judges is their quality, professional background and diversity. President Biden’s history-making contribution to judicial appointments isn’t just ‘breaking the mold’ of prior federal judicial picks — it’s making a whole new one.”
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Biden and Democrats are outpacing former President Donald Trump and the Republican-led Senate — at this juncture, Trump had secured 85 judges. He left office with a staggering 234 new judges, the most of any president in his first four years since Jimmy Carter, thrilling the right and leaving an indelible mark on the courts with young conservative judges poised to serve for generations. Trump's three Supreme Court justices helped to overturn Roe v. Wade last summer, a major breakthrough for opponents of abortion.
Democrats took power in 2021 determined to counter-balance that trend, picking a slate of judges seen as more liberal and bringing a different kind of experience: Biden has picked unusually high numbers of public defenders, civil rights lawyers and labor lawyers compared to his predecessors from both parties.
Sen. Ted Cruz, R-Texas, said Biden’s judicial nominees are “radicals.”
“It’s no secret that I was not a fan of the judges Barack Obama appointed,” he said Monday. “But Obama’s nominees look positively moderate and reasonable compared to the zealots the Biden administration has put forward.”
Democrats stick together for Biden's judges
Last week, the Senate Judiciary Committee advanced 24 new Biden-picked judges, many on a narrow party-line basis, setting them up for floor votes. The committee, chaired by Sen. Dick Durbin, D-Ill., plans to meet to advance more judges this week.
It hasn’t all been smooth sailing for Democrats on judges. Last month, Charnelle Bjelkengren, a Biden nominee to be a district court judge in Washington, failed to answer basic questions about the Constitution from Sen. John Kennedy, R-La., including what Article II says. And Michael Delaney, a Biden nominee for the Boston-based 1st U.S. Circuit Court of Appeals, has faced some criticism from the left over his role as a private lawyer representing a private school that was sued by the family of a girl who was sexually assaulted on campus.
Durbin said Monday he plans to move forward with both nominees.
Confirming judges requires a simple majority in the Senate. Many of Biden’s judges have received some Republican support. Plenty of others have passed with only Democratic votes, earning no support from GOP senators who prefer judges with a narrower and “textualist” view of constitutional interpretation.
Sen. Josh Hawley, R-Mo., a conservative who sits on the Judiciary Committee, grudgingly credited Democrats for sticking together on Biden-picked judges, even in the 50-50 Senate of the last two years.
“The Democrats on the Judiciary Committee — I’m going to give them credit, not a single one of them has broken with this administration on a single judge. And it’s extraordinary,” he said. “Schumer and Durbin have done this to great effect. They have made the conveyor belt on judges move, and of course, I lament that.”
To top Trump, Biden needs judges to retire
Asked recently whether Democrats expect to top Trump’s total of 234 judges over four Biden years, Schumer, D-N.Y., said in an interview: “Yes.”
The New York Democrat said the midterm elections helped their cause after the party defied the odds and gained a seat, stripping Republicans of the ability in an evenly divided Senate to make them jump through an extra hoop to bring a nominee to a floor vote.
“We made it easier with the 51-49 Senate,” Schumer said in his Capitol leadership office.
He acknowledged, however, that Biden will need plenty of judges to retire from active service over the next two years in order to have enough vacancies to fill. “There will be a bunch,” Schumer said. “If the pattern works out, we could get there.”
One snag for Democrats is the “blue slip” tradition, which allows home-state senators to block district court judge nominations. Republicans eliminated the rule for circuit court nominees when it became an obstacle. Now, some progressives are pressuring Democrats to end it for district court nominees as well, to remove a barrier for Biden to fill judicial vacancies in red states. Durbin has resisted the idea but warned the GOP not to abuse the rule.
Republicans don’t have the votes to stop Biden-picked judges on the floor unless they peel off at least two Democrats. But some of them want the GOP to be more aggressive in making their case against the types of judges that the president is nominating.
“I hope our side will want to show some resolve,” Hawley said. “I hope that we will take the opportunity on our side to really make the case against some of these folks.”
And with the Republican-controlled House offering few areas of common ground legislatively, the Senate for the next two years could turn into a factory for judicial confirmations.
“If the Republicans would like to slow us down from achieving that, a great way to do it would be to come forward with compelling legislation that will compete for floor time,” said Sen. Chris Coons, D-Del. “If we have almost nothing else to do on the floor, then the number of judges we will confirm will likely hit an all-time high.”
