More Biden judges will be confirmed, but four appeals court nominees won’t see a vote under Senate deal

By Tierney Sneed and Ted Barrett, CNN

(CNN) — Senate leaders have reached a deal that will smooth the path for Democrats to confirm several of President Joe Biden’s district court nominees, averting Republican procedural tactics that significantly slowed down the process, in exchange for ending efforts to confirm four pending appeals court nominees.

Liberal court activists are already bashing the agreement, reached late Wednesday night, for how it will aid President-elect Donald Trump’s ability to pick up on his makeover of federal circuit courts when he returns to the White House.

However, the four Biden appellate nominees already faced tough odds of confirmation, with some, like 3rd US Circuit Court of Appeals nominee Adeel Mangi, facing opposition among Democrats as well.

“The trade was four circuit nominees — all lacking the votes to get confirmed — for more than triple the number of additional judges moving forward,” a spokesperson for Senate Majority Leader Chuck Schumer said.

The deal comes after Trump called for Republicans to do everything they could to stop the Democratic-led Senate from confirming Biden’s remaining judicial nominees before the change of party control in Washington next year. Even when they haven’t had the numbers to block Biden picks outright, Republicans have employed various floor maneuvers that greatly increased the amount of time the Senate had to spend on each of the pending nominees.

Not counting the four Biden picks that, under the Senate’s agreement, will not come up for a vote, there are about 14 judicial nominees – all of them for district courts – in the pipeline, though two of them are still going through the committee process.

The Senate deal puts Biden in a position to potentially beat Trump’s record of number of district court judges confirmed. However, even before the Democrats’ decision to forgo trying to confirm the four pending circuit nominees, Biden was not going to be able to match Trump’s overhaul of the federal appellate bench and the Supreme Court.

Trump inherited 17 circuit vacancies at the beginning of his first term – in addition to an open Supreme Court seat – in large part because of obstruction tactics by the GOP-controlled Senate at the end of the Obama administration. Senate Republicans then changed a key rule for appellate nominees that made it easier for Trump to fill those vacancies, which further limited the number of circuit openings available for Biden to try to fill.

Trump will not have those same advantages next year when he begins his second term, which will start with far fewer judicial vacancies than he had at the start of his first administration.

Still, Demand Justice, an organization that advocates for progressive judicial nominees, blasted the new deal for depriving the four Biden circuit nominees of floor votes. In a statement, the group’s managing director Maggie Jo Buchanan accused Senate Democrats of “willingly gifting Donald Trump the chance to appoint judges more committed to political agendas than the rule of law.”

Demand Justice and other advocacy groups called for Democrats to make confirming judges the top priority for the lame-duck session, a sentiment Senate Democrats shared.

Those efforts were always going to face headwinds and got more arduous when Trump demanded that Senate Republicans blockade all pending Biden nominees for the bench. That unified opposition was exacerbated by Independent Sen. Joe Manchin’s tendency of voting against nominees that don’t have any Republican support, as well as by opposition to some Biden picks by Independent Sen. Kyrsten Sinema.

Earlier this week Democrats, benefiting from GOP absences – including from several Senate Republicans who were away from Washington – confirmed an 11th Circuit nominee and several trial judges, even as they faced unified Republican opposition.

Under the new deal, Republicans backed off procedural tactics that would stymie the confirmations of six district nominees that were on the floor Wednesday night and on Thursday. Those six nominees, and other Biden picks for federal trial courts, are expected to get final confirmation votes after the Thanksgiving break. Another Biden nominee, for the federal trial court in Arizona, was confirmed Thursday afternoon.

“We had a serious question as to whether we had the votes on the floor for these four nominees, and balancing the opportunity for a record number of district court judges against that possibility,” Senate Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, told reporters Thursday.

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