Democrats are sleep-walking into a disaster by failing to keep pace with the number of judges who are retiring.
President Joe Biden's staff boasted at the end of last year that he had nominated and confirmed a historic number of judges to start off his term, but the president and Senate Democrats could leave more than 60 judicial vacancies at the end of this year -- and they may not have a chance to fill them once a new Congress is sworn in, argued legal expert Christopher Kang in a new column for Slate.
"With the possibility looming that Republicans may retake the Senate, we know that leaving any vacancy open in January could well mean letting a newly empowered Mitch McConnell blockade them, just as he did President Barack Obama’s picks, from Merrick Garland’s Supreme Court nomination to dozens of lower court nominees," wrote Kang, co-founder and chief counsel of Demand Justice and former deputy counsel to president Barack Obama.
The White House and Democratic senators must challenge self-imposed norms and move as relentlessly as Republicans have done to restore balance to federal courts that conservatives have dominated for decades, Kang argued.
"That means filling every vacancy, even if it means breaking with the few remaining judicial confirmation process norms left in McConnell’s wake or standing up to Republican senators," he wrote. "Beginning to bring balance to our judiciary is more important than respecting Senate traditions."
That includes bypassing the Senate tradition of "blue slips," which allow any senator to essentially veto district court nominations from their home state and was weaponized by segregationists, frequently used against Obama nominees and ignored by Republicans during Donald Trump's presidency.
"Abolishing the blue slip custom once and for all will require cooperation from the Senate," Kang wrote, "but the White House should force the issue and expose the absurdity of the system by nominating qualified, professionally diverse nominees in these states and daring the Senate to block them."