When President Joe Biden recently ended his presidential campaign, he said he would focus on pressing unfinished business. Since then, Americans have wondered precisely how someone who devoted the past half century to public service would choose to spend his remaining time as president. One responsibility stands out as critical, particularly for United States democracy and Biden’s legacy: filling the federal courts with highly qualified, mainstream judges.
The Constitution expressly instructs that presidents shall nominate and with Senate advice and consent appoint federal judges. Recent successes that Biden and senators realized in proposing candidates, shepherding nominees through the confirmation process and confirming them show that Biden could felicitously discharge that crucial responsibility and cement his legacy.
Credit: Handout
Credit: Handout
Keeping federal court vacancies limited is critical because justice delayed is justice denied. Protracted openings increase the pressures on specific federal courts, judges, litigants and the broader society. For example, the Speedy Trial Act mandates that criminal cases receive precedence in the federal system, which delays the resolution of civil cases, and especially trials.
Biden must dedicate some of his remaining time to satisfying this constitutional duty. The president’s lengthy service uniquely qualifies him for this role. Biden served three dozen years in the upper chamber. He was a member and chair of the Judiciary Committee, which has lead responsibility for confirming judges. During Biden’s tenure as vice president under President Barack Obama, he continued supplying leadership and cogent advice to Obama, administration officials and elected officers principally responsible for nominating and confirming jurists.
Biden should focus on remedying the seven circuit and 46 district vacancies and 17 future ones while helping authorize new judgeships. The week of July 29, Senate votes with Democratic and Republican support confirmed three well-qualified and centrist district nominees in Maine, New York and Pennsylvania. On that Wednesday, Biden named experienced, moderate Georgia, New York and Pennsylvania district candidates. On that Thursday morning, the Judiciary Committee approved seven talented, mainstream nominees: two for Maine First and Tennessee Sixth Circuit openings; five for two Pennsylvania district vacancies and one each in California, Minnesota and Vermont.
Later that day, senators unanimously passed comprehensive legislation that would authorize 66 new district judgeships. Congress last passed an expansion bill in 1990, even as case loads doubled. In March 2023, the Judicial Conference recommended that Congress approve more than 60 district positions, a suggestion the federal court’s policymaking arm based on conservative work and case load estimates. The new judgeships would be implemented over a decade, efficaciously responding to courts’ needs without advantaging one chief executive or party. The legislation is pending in the House, which could pass the bill in light of overwhelming Senate support for the measure.
On that Thursday evening, the Senate recessed until Sept. 9. Between now and then, Biden must name candidates for the one circuit and 35 district openings that lack nominees. Biden and White House officials should cooperate with home-state senators to concur on acceptable candidates. Committee staff must assess recently chosen nominees and others named during recess so that most can testify in autumn hearings.
Biden should oversee and monitor these initiatives. For example, the White House counsel, who vets and recommends candidates to Biden, and the Justice Department, which prepares nominees for hearings, have selection expertise and keen appreciation for care and expedition. Biden and the White House counsel should continue collaborating with helpful Democrats and with Sen. Lindsey O. Graham, R-S.C., the panel’s ranking member, who urges GOP colleagues to cooperate with Biden and find exceptional nominees for their states’ vacancies, as Graham believes “elections have consequences.” Biden must also collaborate with House Speaker Mike Johnson, R-La., Minority Leader Hakim Jeffries, D-N.Y., and House Judiciary Committee leaders to encourage the judgeships law’s passage. This legislation is long overdue, and it will enable courts, judges and staff nationwide to deliver justice.
Biden must fulfill his constitutional responsibility to nominate and confirm excellent federal judges for many openings. Biden should cooperate with senators to fill vacancies and collaborate with them and House members to authorize new judgeships that promote swift, inexpensive and fair case resolution. Strengthening the courts will improve the federal government, honor the Constitution and burnish the president’s legacy.
Carl Tobias is a University of Richmond law professor.
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