Senate Republicans Should Fight Lame-Duck Judicial Confirmations

President Joe Biden has had a good run of successful judicial appointments. His total of 214 ranks third on the list of most appointments in a single presidential term.

At 44, current judicial vacancies under Biden are below five of his six predecessors. But the American people just handed both parts of the appointment process—the president who nominates judges and the Senate that confirms them—to the other party.

It’s time to wrap it up.

Biden’s judicial nominees have been the most controversial in American history, receiving an average of 39 Senate votes against confirmation. That’s 77% higher than President Donald Trump’s first-term nominees and 78 times the average opposition to judicial nominees confirmed during the 20th century.

Biden’s total for judges confirmed might have been even higher if Democrats themselves had not radically changed the confirmation process.

From the start of the 20th century through President Barack Obama, for example, only 10% of confirmed judicial nominees had any opposition at all. Democrats pushed that to 78% for Trump’s first-term nominees.

Between 1949 and 2013, when the Senate rule for ending debate could apply to judicial nominations, senators took a cloture vote on less than 3% of the nominees they confirmed.

Senate Democrats then neutralized the filibuster so that Republicans couldn’t use it to block Obama nominees. Under Trump, however, Democrats forced the Senate to take a now-useless cloture vote on 80% of the nominees it confirmed, just to delay things and make it harder for Trump to get nominees confirmed in a timely fashion.

Biden, therefore, has appointed 25% of the entire federal judiciary despite the more cumbersome and divisive confirmation process his party created. Hats off to him. But Biden is a lame-duck president, the Senate is in a lame-duck session, and it’s time to look forward.

Biden himself paved the way. He chaired the Senate Judiciary Committee in 1992 and, hoping that Democratic presidential nominee Bill Clinton would defeat President George H.W. Bush, Biden refused to give a hearing to dozens of Bush’s judicial nominees.

Even The New York Times had to report what everyone knew was happening under the headline: “Waiting for Clinton, Democrats Hold Up Court Confirmations.” When the 102nd Congress wrapped up on Oct. 8, 1992 (there was no lame-duck session), 55 judicial nominations expired and were sent back to the president after Biden refused to give them a hearing. That remains a record to this day.

There are several big differences between 1992 and 2024.

First, Democrats kept dozens of judicial nominees on ice even though the percentage of the judiciary left vacant was nearly three times what it is today. Second, while Democrats hoped Clinton would be elected, America’s voters had not yet made a decision. Third, Clinton won with just 43% of the popular vote, while Trump just captured an outright majority.

As a result of the election, Republicans will take the Senate majority Jan. 3. Even though Republicans today are in the minority, without direct control over the process, they are not without influence to minimize further change in the judiciary.

America needs judges who will interpret the law as written and apply it impartially. Biden’s controversial nominees have, as a group, been far from that and—to quote Vice President Kamala Harris—it’s time for “a new way forward.”