Biden and Schumer keep pushing judicial nominees, but still need to fix the Supreme Court

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As of October, the U.S. Supreme Court will have the first Black woman justice in Ketanji Brown Jackson. That is a huge achievement on her part, first and foremost, but also on the part of President Joe Biden in nominating her and Senate Majority Leader Chuck Schumer in quickly and efficiently pushing her nomination through. From Day One, Biden prioritized saving the judiciary from Republicans with the appointment of the most diverse slate of new judges ever at an unprecedented pace.

That’s not going to stop before the midterms, says Schumer. “We are going to keep at it,” he told The New York Times. “Keep putting judges on the bench who are diverse, as we have done in the last year, both demographically but professionally.” As of now, they’ve achieved 59 judicial appointments: one to the Supreme Court, 15 to appeals courts, and 43 to district courts. That’s a record, but with a Supreme Court packed by Trump and Sen. Mitch McConnell, they need to think strategically about nominations and court expansions.

McConnell has made it pretty damn clear that shutting down Democratic judicial appointment is a top priority should Republicans retake the Senate after November’s midterms. Schumer certainly gets that. “The hard right has such a hammerlock on Republicans in terms of judges, you can’t predict what they will do,” he said. “But it’s not going to be good.”

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As of now, there are 16 nominees who have been approved by the Judiciary Committee but not yet sent to the floor: three for the appellate courts and 13 for the district courts. Getting those floor votes done is a big priority, as are the committee hearings for the 13 who have been nominated, as well as identifying candidates for the dozens of open slots.

Given the relatively short time frame between now and November, and the fact that getting Sens. Joe Manchin and Kyrsten Sinema on board with any idea to expand the courts, Biden and Schumer should be focusing on getting as many appointments onto the most conservative district and appeals courts to try to limit the number of really damaging cases the Supreme Court gets.

That means Judiciary Chairman Dick Durbin need to entirely scrap the “blue slip” tradition. That’s the process, a courtesy really, where home state senators allow a nominee to move forward or not. Republicans have played fast and loose with blue slips for years, denying them to President Barack Obama’s nominees when they were in the minority and tossing them for Democrats when Senate Republicans had a majority. Durbin needs to toss the blue slips and start getting those red state courts filled.

That could limit some of the damage. The larger problem is that this Trump-packed Supreme Court has shown that it’s happy to act on an “emergency” basis to end abortion and voting rights already, and to do it from the shadow docket without cases having worked their way through the lower courts.

Ultimately, the only solution to fixing the Supreme Court and saving everything is expanding it. The pressure needs to keep building on Biden, on Schumer, on Durbin, and on House leadership to make that happen. In the meantime, they just have to keep on churning out the confirmations.

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