Biden saw his 100th judge confirmed this week. He could surpass Trump’s record.

This week, the Senate confirmed President Joe Biden’s 100th judicial nominee, reaching an important milestone as Democrats try to fight Republican efforts to remake the federal judiciary.

Confirming more judges is a key goal for Democrats because of the influence these nominees can have on the judiciary and policy. During the Trump administration, Republicans stacked the court with conservative judges who have been central to imposing new restrictions on everything from abortion to health care to labor rights. Democrats now have an opportunity to field more nominees with a liberal ideological perspective — and provide more representation in those roles. Since federal judges serve for life, they will have the ability to shape US policy for decades, with the effects of their decisions lasting for years.

So far, Biden has surpassed former President Donald Trump in terms of the number of judges he can confirm this time in his tenure, advancing 30 circuit court judges, 69 district court judges, and one Supreme Court Justice. Trump has confirmed 85 judges at the start of his third year, including 30 circuit court judges, 53 district court judges, and two Supreme Court Justices. More than 100 vacancies remain.

Senate Democrats have cited quickly filling those openings — responsibilities given to the upper chamber by the Constitution — as one of their top priorities this term. “Judges are the highest level. That’s our legacy. That’s one of the major accomplishments we’ve had here,” Senator Richard Blumenthal (D-CT), a member of the Judiciary Committee, told Vox.

After the 2022 midterms, Democrats also have less trouble confirming judges, as they now have a 51-member majority. And they have a great incentive to do so, because it is one of the few things the Senate can do on its own while Republicans control the House and slow the progress of potential legislation.

However, progressive activists note that Democrats need to be more aggressive if they want to match Trump’s overall record. By the end of his term, Trump had seen 234 judges confirmed, the most of any president in his first four years in recent memory. The appointees — who now make up more than a quarter of the judges on the federal courts — have participated in important decisions at the Supreme Court and in several other courts across the country.

To match or exceed those numbers, Democrats will have to pick up the pace, just as Republicans did in the final years of Trump’s presidency. However, that effort could be a major roadblock for Republicans. Now, senators can block district court nominees from their home states as part of a process the Judiciary Committee has observed in recent years. Because many district court vacancies remain in red states, Republicans have a chance to block Biden’s efforts to fill them, unless the practice is abolished.

Although Republicans have taken advantage of the tradition in the past, Senate Judiciary Chairman Dick Durbin said he wants to preserve the practice today, and encourages cooperation between the two parties. Depending on how aggressively Republicans decide to use this process, Democrats may be forced to reconsider, though.

“There are a lot of ways that Republicans can draw and block this open vacancy in the hopes that it will open up for a Republican president to fill it,” said Chris Kang, chief counsel of the progressive advocacy group Demand Justice. and a veteran of the Obama White House.

Democrats can use their majority

In holding the Senate, Democrats have a great opportunity to continue to make an impact on the federal courts.

And since the majority of the 51 people are newly established, they also have more opportunities. In addition to no longer having to worry about disrupting the committee, they have more room to vote on the floor if a member is absent.

There are also several vacancies still to be filled, and more may arise if additional judges retire. Currently, there are 13 circuit court vacancies and 100 district court vacancies, 48 ​​with nominees and 65 without, according to a tracker from the progressive group Alliance for Justice. Depending on whether additional judges resign over the next two years, there could be other vacancies, which would increase the number of nominations Biden could pursue.

Democrats are committed to speeding up nominations, a Senate Judiciary aide said, and that effort is already underway. In February, Senate Democrats on the panel quickly approved 24 judicial nominees, including several previously blocked by Republicans. Since the beginning of the term, the Senate is also laser-focused on floor votes for judges, considering the past few weeks. Aides noted that they are looking at the pace Republicans are using for committee hearings and votes in 2019, and consider that a marker of how quickly they will move as well.

Democratic efforts in the judges are set to have a substantial impact, when it comes to both the ideological makeup of the court and the extent of the experience that these judges will bring.

Notably, Biden’s nominees are more diverse demographically and in terms of professional experience relative to Trump: 76 percent are women, 68 percent are people of color, and a high proportion are public defenders or have a background in civil rights law. Most of Trump’s judges, meanwhile, are white and male, and come from more traditional prosecutorial or corporate backgrounds.

Many of the Democrats’ choices have been groundbreaking: They have confirmed judges including Gina Méndez-Miró, who became the first LGBTQ person to sit on Puerto Rico’s district court, Cindy Chung, who became the first Asian American to sit on the Third. Circuit Court, and Kentanji Brown Jackson, the first Black woman to sit on the Supreme Court. Biden has also seen several record public defenders confirmed in circuit courts, a development that could affect the types of decisions he hands down.

There are progressive calls for Democrats to be more aggressive

Depending on how many Republicans oppose Biden, Democrats may need to do more to ensure they can move forward with their ambitious plans for the candidate.

There is a push from several groups — from progressive organizations to the editorial board of the New York Times — for Democrats to get rid of the “blue slip” system for district court judges.

Basically, the blue slip allows senators to sign their approval for judicial nominations from their home states. If the senator does not return the blue slip for the nomination, that is considered an indication that he does not support it. Without a blue slip, nominations usually do not advance. However, this norm is ultimately a courtesy that the majority can choose to provide or reject, not a set rule.

Republicans began ignoring the blue slip process for circuit court judges when they gained control of the Senate in 2018, the Democratic policy continued. Activists now want Democrats to do the same for district court nominations, which could be held up by Republicans who want to slow down Biden’s nomination. The idea is that if Republicans don’t want a seat filled, they can theoretically keep it open by refusing to send out blue slips regardless of who the nominee is.

Some who advocate change, like those in the Times, say the system is undemocratic. Others, including many progressive activists, say it should be changed so that Democrats can confirm every judge they can in the next two years.

“If they remove the blue slip barrier, they can fill all the vacancies. If they don’t, they won’t be able to fill all the vacancies,” said Alliance for Justice president Rakim Brooks.

Kang cited Wisconsin Sen. Ron Johnson’s 2022 decision to withdraw his support for district court nominee William Pocan as an example of how the GOP uses this tool to block nominations. Johnson had previously supported Pocan’s nomination, only to withhold the blue slip a month later. Johnson has said that the decision was driven by the fact that Pocan lives outside the district, although Pocan’s offer to move must be confirmed, and it is not clear why this is not the first problem in the nomination. He also noted that Republicans have a history of holding back blue slips, stopping progress on 18 judges in the Obama administration, often with little explanation.

Durbin, head of the Senate Judiciary panel, has been cautious about making these changes. He warned Republicans not to blame the blue slips but noted that he was happy to keep the tradition alive this time. “I want to keep the blue slip,” Durbin told CNN. “I think it’s good, but we need cooperation.”

Republicans have echoed this sentiment and claimed they are still interested in working with Democrats to find a bid for the nomination. “I am confident that the Republican-red state will work with the administration in a reasonable mode,” Senator Lindsey Graham (R-SC), the ranking member of the GOP on the Judiciary Committee, told Vox.

Durbin’s statement suggests that the blue slip process is likely to persist in the near term. Whether that will be an obstacle to Biden’s — and Senate Democrats’ — plans to run for justice, however, may be less clear.