Significant Events and Issues
Total Confirmations. Last Congress, 97 of President Biden’s nominees were confirmed, 68 to district courts, 28 to courts of appeal and one to the Supreme Court. As of September 15, 2023, 137 of his nominees have been confirmed since he took office.
President Biden has made a point of nominating individuals who represent the diversity of this nation, including those from diverse backgrounds. In celebration of the 100th judicial confirmation of his administration on February 14, 2023, President Biden said:
I have appointed more federal circuit judges with experience as public defenders than all prior presidents combined. Seventy-six percent of the Article III judges confirmed during my Administration have been women, and 68% have been people of color. I was proud to nominate Justice Ketanji Brown Jackson as the first Black woman to serve on the U.S. Supreme Court, and I am also proud to have confirmed 12 Black women to serve on federal circuit courts—more than all other Presidents combined.
According to news reports, as of May 15, 70% of his confirmed judges are women and 64% are people of color, including his first appointment to the Supreme Court.
During his presidential campaign in 2020, Biden promised to appoint a Black woman to the Supreme Court if a vacancy occurred, and on February 28, 2022, he officially nominated Ketanji Brown Jackson to replace Associate Justice Stephen Breyer who announced his intention retire when a new justice was confirmed. The Senate Judiciary Committee held three days of hearings, from March 21- 24. After the committee deadlocked in an 11-11 vote, her nomination was advanced to the floor through a discharge petition. She was confirmed by the Senate by a vote of 53-47 on April 7, with three Republican senators joining the Democrats in supporting her nomination. Justice Ketanji Brown Jackson was sworn in on June 30, 2022.
President Biden is responsible for the appointment of first Muslim American federal judge, the first two openly LGBTQ women to serve as U.S. circuit court judges, a spike in Hispanic and Asian American judges, and 12 Black women being confirmed as circuit court judges ― more than all past presidents combined. In addition, President Biden’s nominations also have resulted in the confirmation of a record number of public defenders.
There is concern that the nomination and confirmation process will become more contentious in the coming months. The White House has spent the past two years focused largely on filling court vacancies in states led by Democratic senators, which has made it easier to select and confirm nominees. The majority of current vacancies are in states where there is at least one Republican senator.
Republicans haven’t been turning in blue slips for many of Biden’s court picks, effectively killing their nominations. (See explanation of the blue slip below.) Sen. Dick Durbin (D-Il.), the chair of the Senate Judiciary Committee, noted in a hearing in February that Democrats had turned in 120 blue slips during the Trump administration while Republicans had only turned in 12 during the Biden Administration. A recent letter from progressive groups to Durbin indicates that out of 45 current district court vacancies subject to GOP blue slips, 41 don’t have nominees in the queue.
Even though Senator Durbin is being pressured by some groups to change his commitment to not go forward with a nomination unless both home-state senators submit their blue slips, he has shown no indication that he plans to abandon his position. If nothing changes, a slowdown in the nomination and confirmation process is inevitable.
Blue Slip Process
The role of the blue slip in the nomination and confirmation process is often an issue of considerable debate when the president and the Senate majority represent different parties or when, like this Congress, the Senate majority is razor-thin. This process is not spelled out in a Senate rule and is often characterized as an institutionalization of “senatorial courtesy,” which can be traced back to the 65th Congress (1917-1918).
After a president nominates an individual for a U.S. circuit or district court judgeship, the chair of the Senate Judiciary Committee sends a blue-colored form to the senators representing the home state of the nominee. If a home state senator has no objection to a nominee, the blue slip is returned to the chair with a positive response. If, however, a home-state senator objects to a nominee, the blue slip is either withheld or returned with a negative response.
Since the use of blue slips is not included in the committee’s standing rules, the chair of the Judiciary Committee has the discretion to determine the extent to which a home-state senator’s negative or withheld blue slip prevents a president’s judicial nominee from receiving a committee hearing. A condensed summary of the blue slip process that each chair from 1989 to 2015 (Biden, Hatch, Leahy, and Specter) followed is available here.
While different chairs have used the blue slip in different ways, during the Obama presidency, Senator Leahy insisted that two positive blue slips from the home-state senators were required prior to committee action. This enabled the Republican minority to continue to exert some influence over the president’s selection of nominees. Since there was little reason to nominate someone who would languish in committee due to inaction, there was a strong incentive for the administration to continue to engage in the practice of pre-nomination consultation with senators from the opposite party, even after the nuclear option was invoked.
During the 115th Congress, after President Trump took office, Senate Judiciary Committee Chairman, Senator Grassley, came under intense pressure from his party's leadership to abandon the blue slip process entirely. In late November 2017, Senator Grassley said that as long as there was consultation with the home-state senators, he would decide how he would handle blue slips for circuit nominees on a case-by-case basis. Senator Grassley, however, failed to explain what kind of consultation would qualify. The first nominee to have a hearing without the return of both blue slips was David Strass, nominated to the 8th Circuit. During the rest of the Congress, several other circuit court nominees who did not have the support of one or both home state senators, including Michael Brennan (7th Circuit) and Ryan Bounds (9th Circuit), also had hearings.
Senator Graham, who took over the chairmanship of the Senate Judiciary Committee in the 116th Congress, also ignored the blue slip tradition for circuit court nominees. He held hearings for circuit court nominees who were opposed by both home state senators. For example, hearings were scheduled for two 2nd Circuit nominees and three 9th Circuit nominees even though both of their home state senators declined to return blue slips.
When Senator Durbin became chair of the Judiciary Committee in the 117th Congress, he announced he would continue the blue slip tradition of requiring two blue slips for district court nominees and has not indicated that he plans to abandon the blue slip process.
Filibuster Rule Changes
Halfway through the 113th Congress, then-Majority Leader Harry Reid invoked the “nuclear option” to enable the Democrats to change the Senate’s Standing Rule regarding filibusters by a simple majority vote rather than the 67 votes (i.e., a supermajority vote) that is normally required to change a Standing Rule. As a result of this successful procedural move, the Senate adopted a new filibuster rule that gutted the threat of the filibuster by lowering the threshold for cloture on all executive branch and judicial nominees except for Supreme Court nominees from 60 votes to a simple majority.
Even though the filibuster rule change guaranteed that Democrats could invoke cloture and schedule floor votes, Republicans struck back by making Senator Reid file a cloture motion on every nomination brought to the floor, a tactic aimed at tying up valuable floor time. Nonetheless, the filibuster rule change resulted in a flurry of judicial confirmations, which significantly reduced the number of vacancies by the end of the Congress. It also dramatically increased discord and partisanship and set the stage for what many have called “payback” time during the 114th Congress, when only 22 nominees were confirmed.
In the 115th Congress, prior to voting on Neil Gorsuch for Associate Justice of the Supreme Court of the United States, Senate Majority Leader McConnell used the same tactic to extend the new Senate filibuster rule to Supreme Court nominees.
Senate Rule Change during 116th Congress Reduces Debate on Judicial Nominees
The long-standing rules of debate on judicial nominees and executive branch officials who are subject to nomination and confirmation had allowed up to 30 hours of floor debate prior to a confirmation vote. Senate Majority Leader McConnell proposed a rule change in March 2019 to limit debate on district court nominees and sub-cabinet executive branch nominees to two hours. While a Senate rule change normally requires 67 votes to pass, Senator McConnell resorted to the use of the "nuclear option", a set of procedural moves that enable a standing rule to be changed by a simple majority vote. The proposed rule change was adopted, thereby further diminishing the power of the minority to dissent. This rule change is still in effect.
Please click here for additional information about the nomination and confirmation process during prior Congresses.