140 Judges Later: Senate Democrats Work To Diversify the Federal Judiciary

President Joe Biden, with the leadership of Senate Majority Leader Chuck Schumer (D-N.Y.) and Senator Dick Durbin (D-Ill.), has already barreled past his most recent predecessors with 97 federal judicial confirmations in the first two years of his term.

To better contextualize this number, former President Barack Obama confirmed 62 federal judges in his first two years in office, while former President Donald Trump, with the help of Sen. Mitch McConnell (R-Ky.), confirmed 85 judges in the second half of Trump’s term

At the start of the year, Senate Democrats recommitted to filling the remaining vacancies on the nation’s federal courts and they still have just over 80 vacancies to go. With less than two years left in Biden’s term, it’s a steep goal to reach. 

But Senate Democrats have momentum. When the Senate left for its August recess, the Biden administration had confirmed a total of 140 federal judges, many of which are already deciding impactful cases, in and out of the democracy arena. Just this week, Biden appointee, U.S. District Judge for the Northern District of Georgia Sarah Geraghty used the power of her gavel to pause Georgia’s ban on gender-affirming care for transgender youth. 

As conservatives have packed these lower courts for years, filling federal judicial vacancies with progressive, pro-democracy judges is crucial as election and voting rights litigation picks up heading into 2024. 

Who have Senate Democrats confirmed to the federal bench so far?

In terms of both demographics and experience, Biden has nominated the most diverse slate of federal judicial appointees ever. As U.S. Senate Majority Whip and Chair of the Senate Judiciary Committee Dick Durbin (D-Ill.) told Democracy Docket, “These [140] judges are fair arbiters of justice, reflect the diversity of America, and are highly qualified to serve on the federal bench. As Chair of the Senate Judiciary Committee, I will continue to ensure that our work confirming this caliber of judges to the bench continues.” 

The confirmation that has received the most attention was voting rights lawyer Dale Ho after his nomination stalled for almost two years in the Senate Judiciary Committee during last session’s evenly divided Senate. Prior to his lifetime appointment as a judge on the District Court for the Southern District of New York, Ho worked on voting and civil rights litigation with the NAACP Legal Defense Fund before serving as the director of the ACLU’s Voting Rights Project since 2013. “As voting rights come under assault across the country, it is only fitting that we elevate one of the country’s top voting rights experts to sit on the bench, to safeguard our democracy and preserve our most fundamental right as US Citizens,” Majority Leader Chuck Schumer (D-N.Y.) said at the committee hearing on Ho’s nomination. 

Another monumental confirmation was Nancy Abudu, another voting rights attorney. In May, Abudu was confirmed to the 11th U.S. Circuit Court of Appeals, which rules on appeals originating out of Alabama, Florida and Georgia. She is the first Black woman to ever serve on the 11th Circuit. Before her nomination, she litigated against Florida’s omnibus voter suppression law, and felony disenfranchisement law, Georgia’s omnibus voter suppression law and more.  

Natasha Merle, who marked Democrats’ 100th confirmation, was sworn in this week as a United States District Judge for the Eastern District of New York, making her the first former public defender to serve in the position in almost three decades. Merle — who was previously a public defender, and most recently the deputy director of litigation at the NAACP Legal Defense Fund — will bring an important pro-democracy perspective to the bench. According to Alliance for Justice,  “Ms. Merle participated in Greater Birmingham Ministries v. Alabama,” a 2020 lawsuit filed by the NAACP challenging Alabama’s restrictive photo ID law.  

Among the judges included in Biden’s 100-plus confirmation cohort are: DeAndrea Benjamin, the second woman of color to ever sit on the 4th Circuit; Cindy Chung, the first Asian American ever confirmed to the 3rd Circuit and Gina Méndez-Miró, the first openly LGBTQ+ judge on the District Court of Puerto Rico. 

The CEO of New Pennsylvania Project, a Commonwealth-based voting rights organization, Kadida Kenner contextualized these diverse confirmations in a statement to Democracy Docket, “92 of the [federal] judges identify as belonging to communities of color (almost 67%) compared to the Trump administration that appointed a paltry 14% judges of color, with the majority being white, male and unqualified.”

“The Biden-Harris administration, Chair Durbin, and Senate Democrats have been incredible partners in undoing the damage done to our federal judiciary.” 

Federal judges serve lifetime appointments and rule on a variety of cases, from elections to abortion access, so their rulings affect people’s lives in more ways than one. Adding a diverse set of federal judges not only builds a judiciary that accurately reflects the American population but also could improve the chances of fair and just rulings. 

As Jody Murphy, chief program officer at End Citizens United told Democracy Docket, “A diverse judiciary ensures a broader range of perspectives that can help safeguard our democracy from the undue influence of special interests and uphold the principles of fairness and equity.”

NARAL Pro-Choice America’s Amy Williams Navarro expanded on this notion, adding, “As restrictions on abortion disproportionately affect communities of color and other historically marginalized communities, it is essential that members of those communities sit on the federal bench—not just to offer the perspectives of their lived experiences, but to instill confidence in all Americans that their legal system is working for them, not against them.”

But organizations like Take Back the Court believe that diverse nominations and confirmations are just a small part of the work necessary to improve our federal judiciary. In a comment to Democracy Docket, President Sarah Lipton-Lubet explained, “Democrats have made important progress in diversifying our courts at the lower levels. But the reality is, we won’t have a judiciary that looks like America until we expand the Supreme Court. Until then, it’s crucial that the Senate gets rid of the outdated and undemocratic blue slip process and confirms as many of President Biden’s nominees as possible.”

Eliminating the Jim Crow-era blue slip process is another reform that Democrats, particularly the Congressional Black Caucus (CBC), are focused on in order to confirm more judges before the end of Biden’s term. Chair of the CBC, Rep. Steven Horsford (D-Nev.) argued in a letter to Durbin that called for the end of the practice, writing that “the Blue Slip custom was created by segregationist Senator James Eastland of Mississippi to prevent school integration after Brown v. Board of Education, maintain white supremacy, and entrench Jim Crow by blocking the nomination of judges who would respect Brown as precedent and enforce desegregation orders.”

“Racial, gender and professional diversity matters in all courtrooms to ensure all Americans feel represented in a justice system that has not always been colorblind or fair.”

With the 140 historic confirmations, including the confirmation of the U.S. Supreme Court’s first Black woman justice, Ketanji Brown Jackson, Biden is outpacing his predecessors by diversifying the federal judiciary in terms of gender, race and professional backgrounds — a critical step toward balancing federal courts, which conservatives have packed for years. We can expect to see Biden and the Senate Democrats push to fulfill their goals ahead of 2024.

Opinion To Fight the Supreme Court, Build the Bench

“Everywhere we look, judges appear to be at odds with what most Americans want and what the U.S. Constitution demands. We do, however, have cause for celebration. Democrats are finally building a counter-insurgency to confront an increasingly captured and corrupt judiciary.”