Biden got more judicial nominees confirmed than Trump did — by one
Also: The Wall Street Journal reports that Biden is considering commuting "most, if not all" of the 40 men on death row. It should be "all."
A little past 7 p.m. Friday, the U.S. Senate confirmed Serena Raquel Murillo to a district court judgeship for the Central District of California.
With the 49-47 vote, Murillo became the 235th lifetime-tenure judge nominated by President Biden and confirmed by the Senate. The count is one more than Donald Trump got confirmed in his first term in office.
Earlier Friday, the Senate also confirmed Benjamin Cheeks to a seat on the Southern District of California.
“One out of every four active judges on the bench” was nominated by Biden and confirmed by this Senate, Majority Leader Chuck Schumer said in a press conference after hitting that mark.
In all, the Senate confirmed 22 judges in the lame-duck session — and 14 since Thanksgiving.
With Friday’s four votes done, the Senate is likely finished confirming Article III judges for the year — and for the Biden administration.
There are only three remaining nominees pending on the floor — three of the four appellate nominees who Majority Leader Chuck Schumer has said lacked the votes to be confirmed. As such, Schumer agreed to a deal in which he wouldn’t put those up for a vote — again, that he has said they would lose — in exchange for Republicans not forcing extra votes on every nominee that did get through.
In addition to Adeel Mangi, who spoke out via letter this week about his stalled nomination to the Third Circuit, Julia Lipez’s nomination to the First Circuit is not expected to get a vote. It should be noted, however, that all five active judges on the First Circuit currently are Democratic nominees. Finally, Karla Campbell’s nomination to the Sixth Circuit is not expected to get a vote. Unlike Mangi and Lipez, though, Campbell would be replacing a judge still in active status. Judge Jane Stranch, who announced that she would be taking senior status upon the confirmation of her successor, could withdraw her plans if Campbell does not get confirmed. (Judge James Wynn, on the Fourth Circuit, already did so when Park Park withdrew his nomination because it was not going to get a vote.)
Additionally, Judge Kent Jordan is retiring from the Third Circuit in January.
In all, then, there will only be three or four appeals court vacancies, depending on whether Stranch withdraws her plans, when Trump takes office in January.
Additionally, there are 32 current district court vacancies, as of Friday, and another nine district court judges who have announced they will be retiring or taking senior status in the future, on a date certain or upon the confirmation of their successor.
If you haven’t followed judicial nominations for a while, this might seem like a lot and — to be sure — it is. But to have lowered that number in any real way, there was basically only one thing that they could have done but did not do: Get rid of blue slips.
Continued adherence to the blue slip rule, which allows home-state senators to stop district court nominees from proceeding, explains nearly all of the vacancies that will be awaiting Trump. All but two of the district court nominees are in states with at least one Republican senator, and the vast majority are in states with two Republican senators.
Although many, including me, pushed for Senate Judiciary Committee Chair Dick Durbin to get rid of blue slips, he didn’t. And, as of now at least, incoming Judiciary Committee Chair Chuck Grassley has said that he will keep the blue slip rule in place come the new Congress.
In the absence of getting rid of the blue slip rule, in other words, there are basically only six seats that did not get filled.
It’s an impressive record, and though anyone can and will still argue over whether getting rid of blue slips would have been smart, at the end of the day Durbin got through almost every nominee sent to his committee, and Biden nominated and Schumer and the Senate Dems got confirmed more nominees than even the Leonard Leo-powered Trump effort did.
As Durbin said in a statement tonight:
When I became Chair of the Senate Judiciary Committee, filling judicial vacancies and rebalancing the bench was one of my highest priorities. But we faced a challenging situation. The first two years of the Biden-Harris administration coincided with the longest evenly-divided Senate in history. And for the past two years, Democrats have held only a narrow majority. On top of that, the Biden administration had fewer vacancies to fill than the Trump administration did—in fact, less than half.
“Still, we succeeded beyond what any of us could have hoped for: 235 judges confirmed. More than one out of every four judges now serving on the judicial bench was nominated by President Biden.
It was a feat, and they did it.
And yet, in one month, Trump gets another go at it.
Law Dork covers judicial nominations regularly. Read other coverage here.
WSJ on possible death row commutations
On Friday evening, the Wall Street Journal reported two pieces of major news. First, Jess Bravin and Ryan Barber reported that President Biden “is considering commuting the sentences of most, if not all, of the 40 men on the federal government’s death row,” according to “people familiar with the matter.”1
This followed earlier Washington Post reporting at the White House “considering” some action, which I discussed here and which was far more tentative.
On Friday, though, the Journal’s reporting goes so far as to say that some of their sources said that “[a] decision from the president could come by Christmas.”
Additionally, and in some ways just as important, Bravin and Barber reported that Attorney General Merrick Garland “recommended that Biden commute all but a handful of the sentences.”
This is significant. Although Garland put in place a moratorium on executions during a review of the government’s ececution process, after the Trump administration carried out a 13-execution spree, Garland also has supported capital punishment throughout his career. Earlier this year, he referenced his work in the capital case against Timothy McVeigh, the first person put to death by the federal government in the modern era of the death penalty. Garland also has authorized proceeding with multiple capital prosecutions as attorney general.
The “handful” of exceptions suggested by the Journal are only referenced as “possible exceptions” in the article. They are: Dzhokhar Tsarnaev, from the Boston Marathon bombing that killed three; Dylann Roof, who killed nine in the South Carolina Emanuel African Methodist Episcopal Church shooting; and Robert Bowers, who killed 11 in the Pittsburgh Tree of Life synagogue shooting.
Biden should commute the sentences, but — despite the horrors of these crimes — he should not make exceptions.
Commuting these sentences is making a fundamental and principled statement in the face of Trump’s coming presidency that the government should not kill as a part of its criminal justice system. It is both simple and profound at once.
Creating exceptions — as Garland apparently would do — tears apart the foundation, leaving little principle. It should be everyone. That's the principle. That's the point. That's the end.
Biden should commute all 40 sentences and he should do so before Christmas — sending America a powerful lesson of faith, humility, and humanity on Christmas.
Law Dork covers the death penalty regularly. Read other coverage here.
Due to a transcription error, the phrase “the sentences of” was left out of the quotation initially. This was corrected shortly after publication.
Biden, as a good Catholic, should have no reservations about commuting the death sentence to all federal prisoners. The only thing I agree on with Catholics is abolishing the death penalty.
Join the civilized world. Commute every death sentence.