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December 17, 2022

Even before Mike Lindell failed to find any judge or court in the country to hear his legal complaint about fraud in the 2020 election, a pervasive cynicism existed  that the nation’s Judicial Branch could no longer be counted on for fairness and objectivity before overstepping its authority with an arbitrary dismissal based on “standing” or avoidance of an edgy political matter — all of which raises the question of how some judges become judges in the first place.

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There is a general agreement that being a judge is a desirable, mostly cushy job.  They pretty much make their own hours, set their own schedule and agenda, and establish judicial decisions with very little oversight or accountability.  The question of how a judge survives a retention vote is a different standard; federal Article III judges never need fret about such archaic concerns.  

Senate Judiciary Committee chair Dick Durbin (D-Ill.) described the committee with glowing words on the Senate floor: “The confirmation of highly qualified judges is one of the great, shared successes of President Biden and Senate Democrats.”  There is more here than Durbin’s self-congratulating fable on behalf of an administration that has few bragging rights, especially when it comes to the quality of some of its recent judicial confirmations.

With twenty-two members, the committee’s jurisdiction provides critical oversight of the Department of Justice, the Federal Bureau of Investigation, and the Department of Homeland Security and has responsibility for “advice and consent” on all Article III judicial appointments.  Those judgeships include the Supreme Court and a total of 870 federal judges within the prestigious thirteen Appellate Courts, which are one step away from the Supreme Court — that means five state courts, with the “lower” ninety-four District Courts conducting trials related to federal law.  All Article III judges are lifetime appointments, with a current annual salary of $223,000. 

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One week after Biden’s inauguration in January 2021, there were 59 Article III vacancies awaiting judicial appointment to federal courts.  With full understanding of the need to dominate judicial nominations, the Biden administration began an unprecedented hustle to nominate 142 candidates to fill those federal appointments.  By December 7, 2022, ninety-five federal judicial nominees had been approved by the Judiciary Committee and confirmed by the U.S. Senate, including twenty-eight circuit court judges and sixty-eight district court judges.

With its last confirmation in the 117th session of Congress, there are currently another eighty-three pending vacancies, including thirty-two nominees awaiting Senate approval, another six awaiting a committee vote, and ten awaiting a committee hearing.  Those confirmations include eighteen federal circuit judges with fourteen non-white women and fifty-seven federal district court judges with forty-two non-white women.  About 74 percent of the president’s confirmed nominees are women, and about 46 percent are non-white women, outpacing Trump’s confirmed judicial appointments of eighty-five at the same point in his administration.  

With a steady stream of administrative approvals, required hearings and giving each nominee his due consideration such a massive, time-consuming task, one benefit for the administration’s high rate of nominees is the committee’s inability to conduct its legitimate oversight on the FBI, DOJ, and DHS.  Each nominee requires three separate votes of the committee’s approval process: initial committee approval of the nomination followed by a cloture vote on the Senate floor and a final Senate floor vote on confirmation. 

As Democrats vote in a solid bloc, Republicans frequently split their votes, even to the point of allowing a nominee with a noticeable lack of innate judicial aptitude to pass unscathed.  In the interests of dumbing down the American Judiciary, a conundrum exists when Republicans provide Democrats the necessary votes to approve some of the more sketchy candidates, who otherwise might be denied the luxury of a privileged lifetime career at government expense.  Clearly, these courts (especially the circuit courts) are no place for a second-stringer.

While Biden’s nominations have set a record for women and racially diverse attorneys, there is no assurance that ethnic or cultural diversity is a prerequisite for judicial competence or excellence, that application of “Equal Justice under the Law” will be achieved by diversity, or that a Soros devotee had not slipped through the cracks.  Other considerations may arise.  Should a nominee who supports use of a clerkship or a formal “recommendation” in lieu of passing the bar exam be fast-tracked to confirmation?  Should thin judicial credentials or an inability to explain unsettling legal questions or obvious partisan or ideological bias or membership in a political activist organization such as a labor union be overlooked in favor of diversity?

The difference between a 63-31 confirmation and a 42-48 vote is critical, whether that candidate will be perceived as having been approved overwhelmingly due to exemplary personal and professional qualities to assume a prestigious court position or a relatively close vote indicative of barely eking out a confirmation, indicative of a candidate who is only marginally qualified with less than impressive credentials.  There appears to be little distinction among senators between appointing a circuit court judge with limited judicial experience and a district court judge’s understanding of the Constitution.