Biden and Senate Democrats Rush to Fill Judicial Vacancies During Lame Duck Period

President Joe Biden has two months until he leaves office and President-elect Donald Trump, a known threat to democracy, takes over. During the lame duck period, Biden and Senate Democrats are able to take action to protect voting rights — by filling judicial vacancies.

“While still in charge of the Senate and the White House, we must do all we can to safeguard our democracy,” Sen. Elizabeth Warren (D-Mass.) said in a TIME op-ed. “Senate Majority Leader Chuck Schumer must use every minute of the end-of-year legislative session to confirm federal judges and key regulators — none of whom can be removed by the next President.”

The newly-elected members of Congress will be sworn in on Jan. 3, which will include a Republican-controlled Senate, so if Biden wants to nominate more judges and get them confirmed before he leaves office, the process will have to move quickly.

“Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame duck session given that we have a number of nominees on the floor ready for a vote, and others still moving through Committee,” a spokesperson for Senate Judiciary Committee Chair Dick Durbin (D-IL) said. 

Schumer said in a post on X the chamber will “keep working to confirm as many of [Biden’s] excellent judicial nominees as we can before year-end” and that it’s a “top priority.” 

Biden’s most notable appointment over the last four years is U.S. Supreme Court Justice Ketanji Brown Jackson — who made history in 2022 as the first Black woman to serve on the nation’s highest court. 

While Biden likely will not be able to nominate another Supreme Court justice, there are numerous judgeships in federal courts he has already nominated judges for. 

As of Wednesday morning, the Senate has confirmed 218 of Biden’s judicial nominees in a variety of federal courts. This includes multiple voting rights attorneys, such as Dale Ho to the District Court for the Southern District of New York and Nancy Abudu to the 11th U.S. Circuit Court of Appeals, which represents Alabama, Florida and Georgia and has heard several crucial voting rights cases.

The Senate has confirmed four Biden-appointed judges since Election Day so far, including Embry Kidd, who will join Abudu on the 11th Circuit Court.

Also, Biden diversified federal courts more than any other president in history, nominating a record number of women and people of color, including Abudu, who is the first Black woman to serve on the 11th Circuit.

Back in May, when the Senate confirmed Biden’s 200th judicial nominee, Schumer said that the diverse sets of judges Biden appointed “embody the very ideal of America: a place where the rule of law is protected, where the rights of all are honored, and where everyone…gets a fair shake.”

Over the past few years, Biden-appointed judges have primarily delivered wins for voting rights in a variety of cases and democracy, while Trump appointees have mostly handed out losses for democracy.

Presidential Immunity

• In February, in the U.S. Circuit Court of Appeals for the Washington, D.C. Circuit, a three-judge panel — containing two Biden appointees — ruled that former President Donald Trump is not absolutely immune from criminal prosecution for “official acts” he undertook while serving as president.

• In July, the U.S. Supreme Court, which has three Trump-appointed justices, then ruled Trump is immune from criminal prosecution for official acts he allegedly committed during his tenure in a landmark decision that could shield Trump from the indictments against him and dramatically redefine the limits of presidential power.

Private Right of Action Under Section 2 of the VRA

• In February 2022, Trump-appointed Judge Lee Rudofsky ruled that there was no private right of action under Section 2 of the Voting Rights Act (VRA) — a crucial statute for pro-voting lawsuits — in an Arkansas redistricting case.

• Rudofsky’s ruling led to a November 2023 decision from the 8th U.S. Circuit Court of Appeals — authored by Trump-appointed Judge David Stras — that drastically weakened the VRA across seven states.

Cases Striking Down Voter Suppression Laws

• In July, Biden-appointed Judge Bridget Meehan Brennan struck down an Ohio law that made it a crime for anyone other than a narrow set of authorized individuals to assist voters with disabilities in returning their completed absentee ballots.

• In September, a three-judge panel — containing Biden, Clinton and Bush appointees — in the 9th U.S. Circuit Court of Appeals blocked a Montana law criminalizing voters who do not cancel their voter registration in other counties or states before registering to vote in the state.

Voter Purge Programs — Which Were Prevalent Ahead of 2024 Election

• In March, Biden-appointed Judge Jane Beckering tossed out a lawsuit from a right-wing group seeking to gain access to Michigan’s voter roll maintenance records for the purposes of purging allegedly ineligible voters from the state’s list of registrants. 

• On Oct. 22, Beckering rejected another lawsuit seeking to gain access to Michigan’s voter roll maintenance records to purge allegedly “ineligible” registrants — this time from the Republican National Committee.

• Also in October, Biden-appointed Judge Krissa Lanham denied a right-wing group’s request to require Arizona county election officials to verify the citizenship status of every federal-only voter ahead of the November general election. 

• On Oct. 25, Biden-appointed Judge Patricia Tolliver Giles blocked Virginia Gov. Glenn Youngkin’s (R) voter purge program targeting the registrations of naturalized citizens and other eligible Virginians right before the Nov. 5 election.

• That same week, the U.S. Supreme Court reinstated Virginia’s voter purge program — with the three liberal justices dissenting.

Lena Zwarensteyn, senior director of the fair courts program at The Leadership Conference on Civil and Human Rights, explained in a statement last week that during Trump’s first administration, he and Senate Republicans filled many judgeships with individuals who “are openly hostile to our hard-won civil and human rights,” so it’s imperative that Biden and Senate Democrats fill as many vacancies as they can before Trump enters office in January.

“Our judiciary, our democracy, and our civil and human rights depend on it,” Zwarensteyn said.