Joe Biden races to install a more diverse federal bench

WASHINGTON — Natasha Merle, deputy director of litigation at the NAACP Legal Defense and Educational Fund, has been waiting for more than a year for the Senate to confirm her nomination as a federal District Court judge in the Eastern District of New York.

Merle is among four of President Joe Biden’s unconfirmed judicial nominees for the district that serves Long Island and Brooklyn, and one of 35 nominated by Biden to fill 76 court vacancies nationally, according to the U.S. Courts website.

She also reflects the diversity of gender, race and experience Biden has made a priority by choosing women and minority lawyers engaged in civil rights, legal aid and criminal defense — a contrast to former President Donald Trump’s choice of white male prosecutors and corporate attorneys, for the most part.  

At stake is the direction of the federal courts, highlighted by the recent clashing opinions on the legality of abortion pills by a Trump-appointed federal judge in Texas and a federal judge in Washington state named by former President Barack Obama.

The status of Merle’s pending nomination and unfilled judicial vacancies worry some liberal advocates because of hurdles facing Senate Democrats, both within their caucus and erected by Republicans who oppose many of Biden's nominees as liberal activists.

Senate Minority Leader Mitch McConnell (R-Ky.) has said several times on the Senate floor that Biden and Democrats have been too focused on changing the demographics and mix of professional backgrounds among federal judges, and not enough on candidates' legal qualifications.

In Biden's first two years in office, he and Senate Democrats set a brisk pace that surpassed the number of federal judges confirmed by the last three presidents at the midpoint of their first terms — but that pace has slowed recently.

Senate Democrats have confirmed a total of 118 lower court judges and one U.S. Supreme Court justice at this point in Biden's term. That number just passes the halfway mark in the race to confirm as many as the 234 judges that Trump appointed to the bench during his four-year term.

“This administration has done really a phenomenal job of making sure that we are moving forward with progressive voices,” said Kimberly Humphrey, legal director for federal courts at the nonprofit advocacy group Alliance for Justice.

“But when we look at the 100-plus vacancies that we still need to fill, we're concerned just in terms of the pace, especially at this point,” Humphrey said. “We're moving in the right direction, but we still have a lot of work to do.”

Despite the logjams, the Senate Judiciary Committee in a bipartisan vote Thursday sent seven judicial nominees to the full Senate for confirmation. And on April 14, Biden nominated two Latino judges to serve on the Fifth and Ninth Circuit courts of appeal.

Senate Majority Leader Chuck Schumer (D-N.Y.) has called the speed of approvals and the diversity of nominees historic. “The Senate Democratic majority is determined to continue the pace and progress of judicial confirmations,” Schumer spokesman Angelo Roefaro said.

Hurdles ahead

Senate Democrats face hurdles in matching Trump's and Senate Republicans' confirmation of 105 judges for seats on federal circuit courts of appeal and district courts in his third year in office, according to experts on the judicial confirmation process. 

Biden has fewer vacancies to fill than Trump did. Trump started his third year with 144 vacancies to fill on federal district and circuit courts, according to the U.S. Courts website. In January, Biden had 85 vacancies.

Trump also had more openings than Biden to fill on the circuit courts, whose rulings apply to lower-level district courts in their territories, which usually cover several states.

“Trump appointed 54,” said Carl Tobias, a law professor at the University of Richmond Law School in Virginia. “Biden has appointed 31 so far.”

Democrats have a smaller Senate majority. Republicans had 53 votes in 2019. Democrats have 51 votes, a majority diminished by the recent absence of a handful of Democrats.

One of the biggest roadblocks arose after Sen. Dianne Feinstein (D-Calif.), at age 89 and ill, was absent for the past two months. She stepped down on April 12 from the Senate Judiciary Committee, leaving each party with 10 committee members.

Republicans blocked Democrats from naming a temporary replacement, depriving them of a majority and giving Republicans greater leverage in blocking nominees. On Thursday, Sen. Dick Durbin (D-Ill.), the committee chairman, withheld four nominees scheduled for a committee vote because of Republican opposition.

Republicans have put up strong opposition.

“If Biden can get somebody confirmed with less than 30 no votes, it's quite an accomplishment,” said Russell Wheeler, a judicial nomination expert at the Brookings Institution, a Washington think tank. “Most Republican senators are just voting lockstep against any nominee, no matter who it is.”

McConnell has allowed just four voice votes on Biden nominees. Schumer allowed 28 voice votes for Trump judges, saving hours of floor time.

McConnell and Sen. Lindsey Graham, of South Carolina, the top Republican on the Senate Judiciary Committee, did not respond to requests for comment. 

McConnell repeatedly has rapped the qualifications of Biden’s judicial nominees. He said Biden and Schumer have focused “on identity politics and demographic box-checking” with nominees, who, he said, had “fewer prestigious clerkships and fewer academic honors” than Trump’s choices for the courts.

Of Biden's 116 confirmed judges, just 32% are white and 9% are white men, according to the Federal Judicial Center, the education and research agency for the federal courts. In contrast, 90% of Trump's appointees at this point in his term were white, and 68% of them were white men.

In response, Democrats said the American Bar Association had rated 11 of Trump’s nominees at this point in his term as “not qualified” to be judges — a rating the association has not given to any of Biden’s nominees.

Biden achieved his record-setting pace by filling vacancies on district courts and circuit courts in states with Democratic senators, a tactic Trump also used by focusing on Republican states.

Now, most vacancies Biden has to fill are in states with Republican senators, creating another speed bump for Democrats.

Some Republicans have proposed candidates they know Biden will reject. Others have not submitted or have delayed turning in the “blue slip” that identifies whom they accept or reject to fill district court vacancies. Others just reject Biden’s nominees.

Last week, for example, Sen. Cindy Hyde-Smith (R-Miss.) nixed Biden’s nomination to a federal district court of Scott Colom, a Black state prosecutor backed by Sen. Roger Wicker (R-Miss.) and former Republican Mississippi governors Haley Barbour and Phil Bryant.

Urging shortcuts

Russell Feingold, president of the liberal American Constitution Society and a former senator who served 16 years on the Judiciary Committee, urged Senate Democrats to take steps to overcome Republican opposition.

Durbin should eliminate the blue slips allowing senators to reject district court judges, Feingold said, just like McConnell ended blue-slip approvals for circuit court judges.

Senate Democrats also should change rules to require only two hours instead of 30 hours of debate for circuit court nominees, Feingold said, and they should allow a single vote on multiple nominees, instead of the current individual vote for each one.

To make up for the time lost to recesses and absent Democrats, Feingold urged Schumer to keep the Senate in session in August to confirm more judicial nominees.

Schumer has not publicly commented about those proposals. Durbin has said he will not change the blue slip process.
Meanwhile, Republicans have stalled Merle’s nomination to be a judge.  

A New York University School of Law cum laude graduate, Merle, who is Black, clerked for judges in New York’s Southern and Eastern District courts, and has worked as a public defender and on civil rights cases. The American Bar Association gave her a “well-qualified/qualified” rating. 

Last year, the Senate Judiciary Committee approved her nomination along party lines, but the full Senate did not vote on it.

In January Biden renominated her. But, in a quirk of parliamentary rules, the committee remained evenly divided between the parties and deadlocked on her nomination. Republicans said they opposed her because she would be an “activist judge.”

Durbin promised he would hold another committee vote on Merle. But without Feinstein, Democrats have lost their one-vote majority, at least until they can replace her — delaying action again on Merle's nomination.