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There was a lot of confusion following November's midterm elections when a red wave predicted by pollsters and media personalities failed to materialize. But in the weeks since the election, exit polls made one thing crystal clear: Voters are well aware of the role courts play in our democracy, and they are eager to use their votes to voice their displeasure when court decisions impact their everyday lives for the worse.
This was why the American electorate refused to turn out for Republicans in a big way, despite all signs promising they would. Instead, millions of voters voiced their disapproval of the Supreme Court Dobbs decision that overturned Roe v. Wade and revoked abortion as a constitutional right. In other words, they chose Democrats.
The midterms made clear that American voters overwhelmingly support a woman's right to choose, but also, the unfettered right of everyone to vote, gun safety regulations, and LGBTQ+ rights. In other words, they were sending the Biden administration and the now-guaranteed Democratic Senate majority a clear message: Appointments to the federal courts must continue to be the highest priority.
There are only 18 days left in the lame duck session. It's critical to use this time to confirm as many judicial nominees as possible.
President Biden is off to a good start; the nomination of historically diverse lower court judges has been a bright spot in troubling times. President Biden has now made 142 nominations for lifetime appointments to the federal trial and appellate courts, 96 of whom are women and 96 of whom are of people of color. But only 85 of those nominations have been confirmed as federal judges. There are 56 nominees who are awaiting confirmation, some who have been waiting for a Senate vote for more than a year.
That is unacceptable. Today, there are more than 100 vacancies on the federal bench. Over the next two years, over 175 judges will be eligible to take senior status, and others will retire, creating many additional vacancies.
As a judge who served in the Southern District of New York for more than two decades, I can attest to the impact of vacancies on the work of the court. The eight current vacancies in New York's trial courts means that each active judge now handles more than 500 cases at a time. But large caseloads mean that a judge cannot provide the same level of attention to every case as she would like. It means litigants experience significant delays in getting to a verdict.
There is an old saying that justice delayed is justice denied, but to many litigants—including prisoners, immigrants, victims of discrimination, victims of fraudulent schemes, and large businesses and their executives—this is not just a saying. It has a real and potentially devastating impact on lives and businesses.
And if the courts cannot provide access to justice, where can one get it? State courts have even larger caseloads and greater delays than federal courts, and private dispute resolution like mediation and arbitration can be expensive and is conducted behind closed doors; meanwhile, neither handles immigration, constitutional rights, voting rights, and violations of federal antitrust and securities laws.
Democrats have been slow to appreciate the importance of the courts, but the recent election results were a wake-up call. The Trump Administration, with a strong commitment from then Senate Majority Leader McConnell, made confirming ideologically acceptable judges a top priority, ultimately confirming 234 judges to the federal bench.
Democrats should learn from their example. As the lame duck Congress gets underway, Senate Majority Leader Schumer must put judges on the top of his to do list. Senator Schumer, together with Senator Durbin, the Chairman of the Senate Judiciary Committee, must do what is best for democracy by moving as rapidly as possible to confirm President Biden's nominees.
This requires prioritizing scheduling confirmation votes in the Senate—something Democrats have failed at. Only 10 confirmation votes for judges were held from June to August, despite many nominees waiting for a vote. In early August, the Senate could have stayed in session to confirm more judicial nominees, as then-Senate Majority Leader Mitch McConnell did in 2018. Instead, the Senate adjourned. In October, when the Senate could have demonstrated that confirming judges was a high priority, the Senate adjourned again, although one Committee hearing was held on October 12.
The confirmation of judges should not wait another day. Voters told the Democrats that judicial decisions are a high priority. Now that those voters gave Democrats the chance to continue their work of filling judicial vacancies with fair-minded judges, it is up to Leader Schumer and Chairman Durbin to get President Biden's nominees confirmed.
Shira A. Scheindlin is a former United States District Judge in the Southern District of New York. She serves on the Boards of the American Constitution Society and the Lawyers' Committee for Civil Rights Under Law.
The views expressed in this article are the writer's own.
