Across the federal court system, a sum of 78 vacancies is available for the President to fill as of Nov. 24. The President, along with the backing of Senate Majority Leader Chuck Schumer, has already nominated 64 individuals to federal judgeships, with nine confirmations of circuit judges and 19 district judges.
Political pundits see this as Biden's opportunity to push the courts to the left, while the White House has called the President's latest nominations a continuation of the "promise to ensure that the nation's courts reflect the diversity."
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The President's record-setting pace of confirmations works as a direct rebuff to former President Donald Trump and former Senate Majority Leader Mitch McConnell's attempts to move the federal judiciary to the right. Trump notably confirmed over 230 federal judges, including three Supreme Court justices that formed the present 6-3 conservative majority on the bench.
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An apparent need to fill judicial vacancies rapidly is mainly due to the Democrats' slim hold on the even 50-50 Senate chamber with the Vice-Presidential tiebreaker, as midterm elections are now less than a year out. Republican lawmakers have praised the 2022 midterm elections as an opportunity to gain back the House and potentially the Senate, giving Biden only a short window to confirm judges uncontested should the opposing party win back the majority in either chamber.
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In October, Dan Goldberg, Legal Director at the Alliance for Justice, told Bloomberg Law he thinks "Democrats are very, very clear on what will happen if McConnell becomes majority leader again in 2023."
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Working as a Delaware senator for over three decades and leading the Judiciary Committee from 1987-95, Biden is aware of the power federal judges below the Supreme Court level can hold in upholding or striking down key elements of a President's agenda.
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"President Biden has spent decades committed to strengthening the federal bench, which is why he continues to move rapidly to fill judicial vacancies," a White House official announced.
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Biden's COVID-19 vaccine-or-test mandate is the latest action to face setbacks due to the makeup of the appellate courts. After a three-judge panel on the 5th Circuit, which is deemed the country's most politically Conservative, put a stay on the Occupational Safety and Health Administration emergency temporary standard that was supposed to apply to workplaces employing over 100 workers on Jan. 4. The somewhat Conservative-leaning 6th Circuit was randomly selected on Nov. 16 to hear petitioners' challenges to the mandate. It was seen mainly as a positive outcome for proponents against the OSHA ETS.
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