Biden’s lame-duck judicial confirmation prospects

With the Senate in recess until November 12, observers are worrying that “[t[ime is running out to put Biden-named judges on the federal bench” and asking “can Biden match [Trump’s] number of judicial” appointments?

The answers to these questions are uncertain in part because the Senate this year will be taking final confirmation votes in a post-presidential election lame duck session. Such lame ducks have occurred rarely in the modern era, and thus we do not know much about how any confirmation votes might play out.

As was clear in July, Biden cannot match Trump’s 54 court of appeals appointments. He might top Trump’s 177 district court appointments, but can he appoint sufficiently more district judges to achieve at least 232 total lower court appointments, one more than Trump’s four-year total?

September developments 

Biden lost ground in September (Table 1). He entered the month with 205 confirmations, four more than Trump had at the beginning of September 2020 but ended the month three shy of Trump’s end-of-September total.

Lame duck prospects

As the Senate adjourned in September, Democratic Judiciary Committee leaders told the New York Times’ Carl Hulse that they wanted to “match the number of judges appointed during the Trump administration,” even if it means “‘some long sessions’” and “‘stay[ing] weekends in the lame duck.’” They will have to do so with the same slim 51-seat majority (including four independents) as before the election and with other matters on the plate, including funding the government and reauthorizing Pentagon programs. And Republicans will seek to forestall confirmations, especially if they are looking toward a Trump presidency and/or Republican control of the next Senate. A leading Republican senator told Hulse that he didn’t see “a lot of time for judges and I don’t see why we would make it easy for them.”

Predicting voting behavior on judicial nominees in lame duck sessions after a presidential election is also a challenge because in modern times, history is almost a blank slate. Starting with the Reagan administration, in election years in which the president’s party won the election, the Senate adjourned before Election Day except in 2004 and 2012, when it confirmed three and 13 district judges respectively. And since McKinley’s 1897 inauguration, Senates have confirmed only 15 nominees of defeated presidents. Fourteen were Trump appointees (plus the December 1980 confirmation of Stephen Breyer to the court of appeals).

As to the numbers: Table 2 shows what Senate Republicans faced in November 2020, how that compares to the start of the 2024 lame duck (assuming the Senate sticks to its October recess), and how the Senate got to 2020’s final total.

Trump entered the lame duck with 34 pending nominees, all district. The Senate confirmed 13 of the 34, plus a last-minute circuit nominee to replace Barrett. The 13 district confirmations were 10 nominees whom the Senate Judiciary Committee had reported to the full Senate for possible final votes and three nominees reported in December. Ten of the 13 came from red states plus two from split delegation states. The fourteenth was a bipartisan nominee from California (only eight “no” votes compared to a median 41 for the other 12). All but one of the 21 unsuccessful nominees came from two-Democratic senator states; only three of them had had a committee hearing.

So, can the 2024 Senate deliver the 20 or more confirmations that would top Trump’s four-year total? If Harris wins and Democrats keep control of the Senate, Republicans are unlikely to fold—as they did in 2004 and 2012 when lame duck Senates confirmed Bush and Obama nominees largely on voice votes. That’s a bygone era of the Senate unfamiliar in today’s more partisan atmosphere.

What if Trump wins and Republicans anticipate taking over the Senate? The immediate, very limited, lesson to draw from 2020 is that a lame duck Senate controlled by the party of a defeated president and unsure about the composition of the next Senate (Georgia’s Senate delegation was not determined until January 2021) might be able to power through nominees with majority party Senate delegations and who have been reported to the full Senate.

On the face of it, that would suggest the 2024 confirmation of at least the 14 pending nominees (13 district and one circuit) with blue-state Senate delegations (or no senators, i.e., the District of Columbia) who have been reported out of committee—and perhaps another six (all blue-state district nominees who have had hearings and could get reported out in the lame duck).

What either scenario avoids, however, is the reluctance of some Democratic senators, so far, to take risky votes on nominees whom they probably support but whom Republicans such as Minority Leader McConnell (R-Ky.) have labelled as— “radicals for the federal bench.” Democratic leadership of the closely divided Senate have put off floor votes on such nominees in deference to Democratic senators in tight reelection fights, votes that Republicans made clear¹ they would exploit.

Some of the 14 pending nominees, despite having cleared the Senate Judiciary Committee, have been pending for substantial periods since nomination (three for close to or over a year; four more for over 190 days). The median number of days, from nomination to confirmation, is 138 for Biden nominees, but obviously some have taken longer.

We can speculate—but with little historical guidance—about what might happen in a lame duck, with elections in the rearview mirror (whenever that becomes visible). Will senators take different judicial confirmation votes than they would have if forced to vote in the heat of a reelection campaign? During a lame duck session, for example, would Nevada’s two Democratic senators, one in a 2024 reelection fight, alter their stated opposition to a well-qualified Third Circuit court of appeals nominee, or maintain their opposition in anticipation of future election battles? Will Independents Sinema and Manchin be more—or less—amenable to voting for nominees as they prepare to leave the Senate?

In short, there are enough pending nominees to make possible 20 or more confirmations—232 total lower court Biden appointees—but insufficient certainty about the post-election environment and likely behavior of lame-duck senators to justify saying much more.