Federal judge vacancies present ticking clock for Democrats

Louisiana has three judicial vacancies on its federal courts — two of which are considered “judicial emergencies” — yet the Biden administration has not submitted any nominees to fill the seats. 

The situation is similar nationwide with more than 80 federal court vacancies that have no nominees, and Senate Democrats so far have no plans to expedite appointments. At the current pace, dozens of judgeships could still be open by year’s end with the possibility that Republicans gain control of the chamber.

With recent U.S. Supreme Court justices overturning decades of legal precedent and meddling in partisan culture wars, the public’s interest in how judges are appointed has reached new highs. Citizens and advocacy groups are tracking vacancies and paying attention to nominations at the district and appellate court levels.

“Anytime someone is appointed to a position for life, we ought to be paying attention to the process on how they get that appointment,” NAACP Legal Defense Fund attorney Jared Evans said.

Although President Joe Biden has had the largest number of judicial nominees confirmed in a president’s first year in office since Ronald Reagan, there are still too many federal judge vacancies for Biden to fill before the end of the year if Senate Democrats continue their current pace and schedule of confirming new judges to the bench. 

Jake Faleschini, interim justice program director of the Alliance for Justice, a progressive organization that tracks federal judicial vacancies, said there are 83 current and announced vacancies without nominees, including 10 in circuit courts of appeal and 73 in district courts. 

“At the current pace and the current schedule, even if the administration and the Senate were to proceed at roughly the same pace, that would still leave roughly 50 vacancies on the district courts at the end of the year,” Faleschini said.

One challenge the president faces in appointing judges is the confirmation process adopted by the Senate. When the president selects judicial nominees, the Senate Judiciary Committee must vet nominees before they can be advanced to a Senate floor vote for final confirmation to the bench. 

A controversial part of that process is an unofficial tradition called the “blue slip” in which a senator from the state of the judicial vacancy can either declare their support for the nominee or refuse and singlehandedly blackball the nominee, preventing the other senators from voting.

Faleschini said the blue slip tradition came into prominent use by segregationist senators in the 1960s to block judicial nominees of color or nominees who opposed racist ideology.

“There’s a long racist history to the blue slip that is very similar to the racist history of the filibuster,” Faleschini said.

A blue slip refusal often occurs when the senator belongs to the opposing party of the president. In February, Sen. Ron Johnson, R-Wisconsin, halted the confirmation of William Pocan, who would be the state’s first LGBTQ federal judge. Johnson refused to sign a blue slip after initially endorsing Pocan for the position and after Johnson’s bipartisan nominating committee also recommended Pocan. His nomination still remains pending. 

Louisiana gained three vacancies early this year.  Two are deemed “judicial emergencies” due to the high number of critical filings and cases. Both are in the Western District of Louisiana where Judges Elizabeth Foote and Michael Juneau have reached “senior” status (semi-retirement). The third vacancy is in the Eastern District after the death of Judge Martin Feldman in January.

A spokesperson for Sen. John Kennedy, R-Louisiana, who sits on the Judiciary Committee, had no comment when asked if Kennedy planned to recommend anyone for nomination.  

States such as Louisiana, with two GOP senators, could force Biden and Senate Democrats to choose nominees more cautiously, but Faleschini said they have bigger priorities to worry about right now — the 10 appellate court vacancies. 

One of those is an upcoming vacancy in the 5th Circuit, headquartered in New Orleans, that will open on Aug. 5 with the resignation of Obama appointee Judge Gregg Costa.

He said Senate Democrats need to focus first on filling the circuit courts and then confirming nominees that Republican senators can’t blackball. For instance, they could fill 12 vacancies in California, 10 in New York and seven in Pennsylvania because those states each have two Democratic senators.

With Senate Democrats losing the race against the clock, some political pundits and advocates are urging them to circumvent the blue slip tradition and leave no judicial vacancies to chance under a majority-Republican Senate — the same action Republicans took for circuit court nominees under the Trump administration. 

Faleschini pointed out that Sen. Johnson’s blue slip refusal for William Pocan should have served as the writing on the wall for Democrats.

“That is the sort of action that could and should trigger a change in the rules,” he said.

The Louisiana Legislature has a similar blue slip process for the governor’s commission and board appointments. State Sen. Cleo Fields, D-Baton Rouge, defended the tradition during debate in the 2022 legislative session. In a Thursday phone call, Fields, a former member of Congress, said the blue slip needs to be used within reason whether at the state or federal levels. 

“The way the Supreme Court has been ruling, obviously, it’s important to have these judges appointed to these very important roles,” Fields said. “But I’m not going to criticize their blue slip process. It just needs to be done within reason.”