Biden sidesteps GOP on judicial vacancies, for now

President BidenJoe BidenHow 'Buy American', other pro-US policies can help advocates pass ambitious climate policies Overnight Defense & National Security — Presented by Raytheon Technologies — Biden backtracks on Taiwan Photos of the Week: Manchin protestor, Paris Hilton and a mirror room MORE is racing to get his court picks on the bench, but he's sidestepping vacancies in states with Republican senators.

Among Biden’s Senate-confirmed picks, and the vacancies where he’s made nominations, none are from GOP-led states or those where the Senate seats are split between Democrats and Republicans.

That’s left Biden with 16 district court vacancies to fill from states with at least one GOP senator, and more on the horizon. For the powerful circuit courts, the lone vacancy where Biden hasn’t named a replacement is in Kansas — represented by GOP Sens. Jerry MoranGerald (Jerry) MoranSenate GOP signals they'll help bail out Biden's Fed chair Star gymnasts call on Congress to dissolve US Olympics board Expats plead with US to deliver COVID-19 vaccines MORE and Roger MarshallRoger W. MarshallVaccine 'resisters' are a real problem Defund the vaccine mandate Biden presses companies to get ahead of vaccine mandate MORE — on the 10th Circuit.


In some cases, senators or congressional aides told The Hill that they were in talks with the White House, with one nomination described as “imminent,” but others said they haven’t received any outreach from the White House about vacancies in their states.

“We are in regular and close touch with Senators of both parties all across the country as the President nominates qualified, experienced candidates for the federal bench who are devoted to the rule of law and who reflect the diversity of our nation,” Andrew Bates, a White House spokesman, told The Hill in an email.

When asked about the trend, Senate Judiciary Committee Chairman Dick DurbinDick DurbinManchin: Negotiators to miss Friday target for deal on reconciliation bill Democrats look for plan B on filibuster The Memo: Cuts to big bill vex Democrats MORE (D-Ill.), while acknowledging that there could be multiple factors, noted that senators generally start the process by creating a list of potential nominees.

“Step one usually relies on the senators to come up with names,” Durbin said.

Durbin said he had urged Democratic senators to quickly set up their selection process so they could get names to the White House. Asked about GOP senators, Durbin added: “Up to them.”

But the number of red or split-state vacancies Biden faces is only expected to grow. Spots are soon expected to open up in Arkansas, Iowa, Louisiana, South Dakota, Utah and Wyoming, as well as additional district vacancies in Texas and Indiana, according to tracking by the Administrative Office of the U.S. Courts.


Of the current vacancies, the White House hasn't reached out on vacancies in Alabama, Florida and Indiana, according to GOP senators and aides.

The longest running vacancy among those states is in Alabama, where a district court seat opened up in February 2020. The Trump administration submitted a nominee to the Senate, but that was withdrawn earlier this year.

“I have no idea. Haven’t heard from the White House on it. It would have to be somebody well-qualified to get by us,” said Sen. Richard ShelbyRichard Craig ShelbyBlack Hawk pilot shot down in Somalia jumps into Alabama Senate race Senate Democrats ditch Hyde amendment for first time in decades Senate Democrats unveil remaining spending bills, teeing up clash with Republicans MORE (R-Ala.).

Sen. Tommy Tuberville (R-Ala.) added that he also hadn’t heard from the White House and wasn’t sure when he would.

“We have no clue. The way things go around here you never know,” Tuberville said about when conversations could get underway.

Sens. Rick Scott (R-Fla.) and Mike BraunMichael BraunIndiana recruiting unvaccinated Chicago officers Indiana's GOP senator: Chicago police who defied vaccine mandate 'deserve respect' Bottom line MORE (R-Ind.) also said they haven’t had outreach from the White House. Florida has two vacancies, one created this year and the other from 2020, while Indiana has one vacancy created in January.

But in other cases, senators said they were in contact with the White House and at various stages in the pipeline for getting a nomination for a vacancy back in their home state.

There are nine court vacancies in states represented by one Democratic senator and one Republican senator. The White House is in talks with senators from each of those states.

Wisconsin, for example, uses a commission to come up with recommendations for senators to fill federal court vacancies. Sen. Ron JohnsonRonald (Ron) Harold JohnsonA pandemic of hyper-hypocrisy is infecting American politics Sen. Ron Johnson hoping for Democratic 'gridlock' on reconciliation package Republicans' mantra should have been 'Stop the Spread' MORE (R-Wis.) told The Hill that the commission had submitted four names to the White House for a district court vacancy in his state.

“Names have been with the president for several months. I understand the president’s decision is imminent,” Sen. Tammy BaldwinTammy Suzanne BaldwinProgressives push back on decision to shrink Biden's paid family leave program Building back better by investing in workers and communities The Hill's Morning Report - Presented by Facebook - Senate nears surprise deal on short-term debt ceiling hike MORE (D-Wis.), asked about the vacancy, told The Hill.

Sens. Sherrod BrownSherrod Campbell BrownWhen the Fed plays follow the leader, it steers us all toward inflation Which proposals will survive in the Democrats' spending plan? Senate Democrats call for diversity among new Federal Reserve Bank presidents MORE (D-Ohio) and Bob CaseyRobert (Bob) Patrick CaseySenate Democrats call for diversity among new Federal Reserve Bank presidents Manchin, Sanders to seek deal on Biden agenda Democrats struggle to gain steam on Biden spending plan MORE (D-Pa.) also said they were working to come up with names for district court vacancies in their states. Ohio has three district court vacancies, while Pennsylvania has four, including one dating back to 2018.

“We’re getting close. ... There’s just a long process,” Casey said, adding that he and Sen. Pat ToomeyPatrick (Pat) Joseph ToomeyBlack women look to build upon gains in coming elections Watch live: GOP senators present new infrastructure proposal Sasse rebuked by Nebraska Republican Party over impeachment vote MORE (R-Pa.) had “at least” started talks with the White House.


The White House has also been in touch with some GOP senators in red states who have vacancies. Sen. James LankfordJames Paul LankfordBill requiring companies report cyber incidents moves forward in the Senate Manchin's 'red line' on abortion splits Democrats Lankford draws second GOP primary challenger in Oklahoma MORE (R-Okla.) told The Hill that they had “started talking” with the White House.

“We’re working through that process,” Lankford said. “Taking names, talking recommendations, obviously working with the White House.”

Sen. Mike CrapoMichael (Mike) Dean CrapoDemocrats narrow scope of IRS proposal amid GOP attacks Senate GOP signals they'll help bail out Biden's Fed chair Yellen confident of minimum global corporate tax passage in Congress MORE (R-Idaho) added that he had been in touch with the White House but that he and Sen. Jim RischJim Elroy RischOvernight Defense & National Security — Presented by Raytheon Technologies — Biden backtracks on Taiwan Top GOP senators want joint review of Afghan visa process Biden pick for China envoy raises concern over nuclear buildup MORE (R-Idaho) hadn’t yet recommended names.

“A number of people have expressed interest or have expressed interest in someone else,” Crapo said. “[But] we have not done that yet. Sen. Risch and I will do that, but we haven’t done it yet.”

The White House’s decision to focus on judicial vacancies from states within its own party isn’t unheard of. The Brookings Institution’s Russell Wheeler noted that the Trump administration “followed somewhat the same pattern,” with only one of his pre-recess district court picks in 2017 coming from a state with a Democratic senator.

There’s no Senate rule that requires Biden get buy-in from GOP senators on who he nominates. But a Senate precedent known as the “blue slip" gives home-state senators tremendous sway over who gets nominated for district court vacancies in their state and the power to block nominees they oppose.


Wheeler added that by focusing on Democratic state vacancies, Biden “has deferred dealing” with the blue slip, which can force “drawn-out negotiations, especially with opposite-party senators.”

“Biden has outpaced recent predecessors by moving expeditiously on the judicial nominations that are least likely to meet Senate resistance,” Wheeler wrote.

Updated at 9:08 a.m.