Ask Senate candidates for their position on confirming judges
As California voters contemplate whom to vote for in the March U.S. Senate primary and in November, there’s another branch of government voters need to think about: the judiciary. It’s impossible to know what type of legislation a Senate candidate may or may not have the opportunity to vote on if elected. But one thing is for certain, the next U.S. Senator from California will vote on the confirmation of federal judges.
Given the hyper-partisanship that is unfortunately crippling Congress now, it is unlikely that the next U.S. Senator from California will have the opportunity to vote on successful legislation that protects the right to abortion or bans racial gerrymandering or protects workers’ right to strike.
But it is likely that the next U.S. Senator from California votes to confirm judges who will oversee cases that directly impact those issues during their tenure on the bench.
With a divided Congress, as we have now and could easily have again postNovember, a senator’s vote on judges could be one of the most impactful things they do while in office. Moreover, a single senator can be the difference between a judicial candidate being confirmed or not. In recent years, the Senate has had a majority of one or been evenly split between the two parties. The Senate may again be so after November, making it more likely that confirmation votes will be close and one senator could be the deciding factor on whether a candidate is confirmed.
As voters engage with Senate candidates, a question that should be front of mind is: If elected, how would each candidate determine whether to vote to confirm a federal judicial candidate? What issues would they prioritize in reviewing a candidate’s credentials and background? What criteria would they use?
The right spent the four years of the Trump administration packing the federal courts with conservative ideologues, who according to the American Constitution Society, were over 76% male and 84% white. The Biden administration has been working to balance the courts by nominating diverse, qualified judicial candidates who are committed to the rule of law, to vindicating our fundamental freedoms and to safeguarding democracy.
This contrast is evident in California. During his four years, former President Donald Trump appointed five district court judges in California, all five male and four of them white. Contrast that with President Joe Biden who has appointed 22 district court judges in California, 14 of them women and 17 people of color.
President Biden is doing what he can to balance the federal courts after the Trump administration by continuously rolling out new nominations. Already this month, he announced a tranche of six new nominations, including nominating San Diego Superior Court Judge Rebecca Kanter for the Southern District of California. But, the president needs the Senate to step up its pace of confirmations.
During the first two years of the Biden administration, the Senate did its part to ensure that President Biden exceeded Trump’s pace of judicial appointments. Last year, the Senate took its foot off the gas, and Biden fell behind Trump as the Senate confirmed, on average, a mere handful of judges per month.
The deprioritization of judges in 2023 was partly due to attendance issues in the spring. While for valid medical reasons, having multiple senators absent for weeks on end made it exceedingly difficult for the Senate Judiciary Committee to process judicial nominees and for the Senate to confirm them. The confirmation process ground effectively to a halt at times, as the Senate waited for members to return. This is another consequence of having a slim majority, attendance dictates what the Senate can do.
That said, attendance does not explain why the Senate opted to take all of August off or failed to use the weeks of House disfunction in October when there was no speaker to prioritize what only it can do: confirm judges. What we saw in 2023 was a Senate that consistently deprioritized judicial confirmations.
This tees up the question for Senate candidates: Will they prioritize judicial confirmations if elected? The Senate majority leader controls the Senate calendar and what gets taken up on the Senate floor and when. But the majority leader is susceptible to pressure from their caucus. Had more senators pressed Senate Majority Leader Chuck Schumer last year to prioritize judges, it’s likely the Senate would have done more to keep Biden ahead of his predecessor on judicial appointments. Similarly, had attendance been more reliable in the spring, more judges likely would have been confirmed.
This is the backdrop against which voters should engage Senate candidates. Almost regardless of what policy issues a candidate says are their priority, those issues are directly impacted by the federal courts. Every candidate should be asked if and how they will prioritize the courts and ensure their caucus does the same, and what criteria they will use in determining whether to vote to confirm judicial candidates. In essence, does a candidate believe that courts matter?
Russ Feingold is president of the American Constitution Society and served three terms as a U.S. senator from Wisconsin. Gabriella Barbosa is a board member of the American Constitution Society and an attorney whose work supports the wellbeing and economic mobility of children and families in Los Angeles and California.