What we talk about when we talk about judges and vacancies

A walk through the lame-duck numbers, the nominees, and what it all means. Also: A big milestone at Law Dork!

Thus far, the U.S. Senate has confirmed 221 lifetime-tenure federal judges nominated by President Biden — including eight since the election.

The final number was 234 for Donald Trump’s first term.

There are less than 40 days left in the current Congress, but Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chair Dick Durbin have been working to get more of Biden’s nominees through in the lame-duck session — with an apparent goal to surpass that number.

But, there are expected to be a few dozen vacancies that remain when Trump takes office. Along with that general knowledge and a “deal” between Schumer and the Republicans on judges that was first reported in a slanted-all-the-way-to-the-Republicans and apparently inaccurate manner by Fox News, Schumer has faced significant pushback in recent days about how good of a job he is doing in getting judges confirmed.

What all of this means — and how good Biden, Schumer, Durbin, and the Democrats have done — depends on how you define the matter. There are several different elements that must be considered.

About judicial vacancies

First, the numbers aren’t just a single number because there are really several different types of vacancies.

Vacancies are created when an active federal judge announces they are leaving active status or dies. If they’re choosing to leave active status, they can do one of two things: fully resign from the bench (either to actually retire or to take a different job) or take senior status (a semi-retired position that allows qualified judges to take on a reduced caseload). In addition to that, a judge can either announce their retirement for a certain date or contingent on the confirmation of their successor. In addition to all of that, a judge can withdraw their retirement if it hasn’t yet gone into effect.

Then, there are blue slips. The Senate procedure by which a home-state senator can prevent a district court nomination from moving forward in the Judiciary Committee. Durbin refused to give in to pressure to get rid of blue slips. That decision, as we will see, accounts for most of the vacancies that will exist on January 20.

But, as Durbin noted on Nov. 21, “Earlier this week, Senator [Chuck] Grassley, our incoming Committee Chair, expressed his intention to maintain blue slips for district court nominees. I was glad to hear this. I faced enormous pressure to do away with the blue slip for the last four years during my tenure as Chair.”

So, at least for now, Durbin’s argument is that, while blue slips prevented several vacancies from being filled, Grassley is saying that he will maintain that when nominees arise during the Trump administration in states with at least one Democratic senator.

The numbers and the names

Because of all of this, the numbers are more complicated than they might appear and I want to categorize them to help make sense of it all.

Of the current vacancies:

• Five nominees for district court judgeships — Cynthia Dixon (C.D. Calif.), Catherine Henry (E.D. Penn.), Anne Hwang (C.D. Calif.), Sparkle L. Sooknanan (D. D.C.), and Gail Weilheimer (E.D. Penn.) — had cloture invoked on their nominations this past week. They are expected to be able to get a confirmation vote in the coming weeks.

• One nominee for a district court judgeship — Elizabeth Coombe (N.D. N.Y.) — had her nomination reported favorably to the floor from the Judiciary Committee on Nov. 21.

• Two nominees for district court judgeships — Benjamin Cheeks (S.D. Calif.) and Serena Murillo (C.D. Calif.) — had their confirmation hearings in the Judiciary Committee on Nov. 20.

• Two nominees are not expected to get votes because, per Schumer, they are among the four appeals court nominees “lacking the votes to get confirmed” — meaning they lack support from at least two Democrats or independents and have no Republican support. One is Adeel Mangi, the Third Circuit nominee who faced an extreme anti-Muslim campaign. While the opposition from Sens. Catherine Cortez Masto, Joe Manchin, and Jacky Rosen is awful, it is not news. The other current appellate vacancy is in the First Circuit, which has six seats. It has five Democratic appointees — four of them appointed by Biden. So, while Julia Lipez’s nomination not getting a vote is a loss, it’s hard to see this as a huge misstep by Schumer.

• Two nominees for district court judgeships — Detra Shaw-Wilder (S.D. Fla.) and Rebecca Kanter (S.D. Calif.) — have not had confirmation hearings.

• Twenty-eight vacancies — 27 in states with at least two Republican senators, one in a state with one Republican senator — had no nominee.

Of the future vacancies:

• One future vacancy will be filled by Embry Kidd, confirmed to the Eleventh Circuit this past week. Judge Charles Wilson is set to take senior status now that Kidd has been confirmed.

• Two nominees for district court judgeships — Brian E. Murphy (D. Mass.) and Noel Wise (N.D. Calif.) — had cloture invoked on their nominations this past week. They will be able to get a confirmation vote in the coming weeks and take seats held by judges taking senior status.

• Four nominees for district court judgeships — Anthony Brindisi (N.D. N.Y.), Sarah Davenport (D. N.M.), Tiffany Johnson (N.D. Ga.), and Keli Neary (M.D. Penn.) — had their nominations reported favorably to the floor from the Judiciary Committee on Nov. 21. Neary is nominated to take the seat of a retiring judge, but the others are to take the seats of judges taking senior status.

• Two nominees are not expected to get votes because, per Schumer, they are among the four appeals court nominees “lacking the votes to get confirmed.” They are Karla Campbell, the Sixth Circuit nominee, and Ryan Park, the Fourth Circuit nominee. Both of the current judges — Judges Jane Stranch (71) and James Wynn Jr. (70) — could withdraw their decision to take senior status upon confirmation of a successor. Although it certainly would have been important to get significantly younger judges to replace them — especially on the Sixth Circuit, which already has more Republican appointees — neither of these necessarily will become seats that Trump gets to fill.

• One nomination failed in the Judiciary Committee, when Sen. Jon Ossoff voted against the nomination of Sarah Netburn (S.D. N.Y.). Biden announced his intent to nominate Tali Farhadian Weinstein for the spot on Nov. 8, although it still has not been submitted to the Senate,¹ and Judge Lorna Schofield is set to take senior status at the end of the year.

• One nominee for a future district court vacancy — Danna Rae Jackson (D. Mont.) — has not had a confirmation hearing. She was set to take the seat of Judge Dana Christensen, who announced he would be taking senior status when his successor is confirmed. An Obama appointee, he could withdraw his decision.

• Nine future vacancies had no nominee. One appeals court judge, Judge Kent Jordan, is retiring Jan. 15, 2025. A George W. Bush appointee, no nominee was ever put forth for this seat while the Mangi nomination remained pending. The other eight judges are district court judges taking senior status, with two not setting a date certain, three setting dates before Trump takes office, and three setting dates for next summer or fall. Seven of the eight future district court vacancies are in states with at least one Republican senator. The one vacancy in a state with two Democratic senators is Judge Dennis Saylor (D. Mass.), and he only announced his intention to take senior status next summer on Oct. 1.

The bottom line

Where does that leave us?

If every judge moving forward is confirmed, 235 judges nominated by Biden will be confirmed — one more than were confirmed under Trump.

All but 6 of Biden’s nominees have been voted out of the Judiciary Committee, with one having been voted down. Two of the remaining five appear likely to be voted out of committee in December.

There would be at least 34 current vacancies that will not be filled (including two appellate vacancies), as many as three and as few as one future appellate vacancy/vacancies when Trump takes office, and up to 10 future district court vacancies as of now (four of which are, as of now, set to take effect before Trump takes office). Of those, 35 have likely resulted, directly or otherwise, because of the blue-slip process.

Although I think there certainly are criticisms here or there that can be raised about the treatment and prioritization of judges, I think the numbers prove out that the only real question comes out of the blue-slip decision. I am on record back in 2022, after the midterms, stating very clearly that I believed that blue slips needed to go.

But, they weren’t — and Durbin and Schumer were clear on that throughout this session and the Biden administration did not fight it, either publicly or, to my understanding, privately. So, while that decision certainly can and should be questioned, it was known.

If you put that aside then, there likely will be less than 10 vacancies that Schumer and/or Durbin didn’t push through to confirmation.

I have had many questions about and criticisms of both men over time, but — again, aside from the blue-slip decision — I don’t have much to criticize about their judicial nominations record.

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1. The information about Tali Farhadian Weinstein was added shortly after initial publication, at 11:53 p.m.