What a 51–49 Senate means for judicial nominations

With Sen. Raphael Warnock’s (D-Ga.) victory in the Georgia runoff, Senate Democrats will have a 51–49 majority for the next two years of the Biden administration. 

While the leadership of Majority Leader Chuck Schumer (D-N.Y.) and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) has ensured the confirmation of more than 95 judges with a 50–50 Senate, this one-vote shift will further increase the ease of confirmations moving forward. In fact, it may prove necessary to achieve a true transformation of the courts.

Fewer Tie Votes and Attendance Issues 

One of the biggest obstacles to confirming judges the past two years has been the procedural hurdles created by an evenly split Senate. With an even number from both parties on the Senate Judiciary Committee, several nominees have received deadlocked votes in committee. Confirming these nominees required extra procedural votes called discharge petitions, which extended how long those confirmations took.  

These narrow votes further compounded the challenge of attendance issues. With every Senate Republican prepared to vote against some nominees, every Senate Democrat had to be present to ensure the confirmation could go through. In some cases, Vice President Harris also had to be present to break tie votes. This equated to less time for votes. Having a Democratic majority running the Judiciary Committee will likely eliminate the need for future discharge petitions. The majority in the full Senate will likewise create a cushion making it easier to guarantee votes will be successful.

More Movement Nominees 

The nominees that have required discharge petitions or tiebreakers have been “controversial” specifically because they bring diverse experiences that the federal bench desperately needs. They have been civil rights attorneys, labor attorneys, voting rights attorneys and others who have stood up for equal justice under the law in ways some Senate Republicans oppose.

As it stands, the courts are still overpopulated with judges who are white men and/or who primarily have experience as corporate attorneys and prosecutors. Like no other president before, President Biden is showing that there are many more paths in the legal profession to being a federal judge, and that diversity is helping restore faith in our courts and the rule of law.

That said, even this administration has nominated judges in the old model — in at least part, it seems, because they were more likely to sail smoothly through the confirmation process in an evenly divided Senate. With the extra buffer of a 51–49 Senate and guaranteed majority in the Senate Judiciary Committee, there will be more incentive to pick the kind of judges our courts need most rather than those most easily confirmed. 

Blue Slip Challenge  

One of the biggest challenges moving forward is that many of the remaining judicial vacancies are in states represented by two Republican senators. While Senate Republicans did away with the blue slip for circuit court nominees during the Trump administration, the blue slip process is — for now — still honored for district court nominees. This means the Republican senators in states like Florida (seven vacancies), Texas (five vacancies), and Louisiana (four vacancies) can block any nomination to those empty seats from moving forward. 

Alliance for Justice opposes the blue slip. For too long, it’s been used to obstruct judicial nominees solely for partisan reasons. It has resulted in many well-qualified and diverse nominees never having the opportunity to serve as judges. Chair Durbin warned previously that its use for discriminatory reasons will not be tolerated, and the senators will confront that test in the next two years.

The White House must move forward with nominating the very best judicial candidates for every vacancy, including in these red states, and the Senate must move forward with confirming each and every one of them. Having an extra vote will ensure that they can be confirmed over blue slip objections and the Senate can leave no vacancy unfilled.

There is still much work to be done. We’ve seen incredible progress with more than 90 nominees confirmed, but the Latinx, LGBTQ and disability communities are still disproportionately underrepresented on our courts, as are judges who dedicated their careers to economic justice, climate justice and civil rights. This is a moment of celebration, and now is the time to capitalize on the Democratic Senate majority and truly transform the courts for the better.

Rakim H.D. Brooks is the president of Alliance for Justice and a public interest lawyer.