The White House is gearing up for what could be President Joe Biden’s last chance to put his stamp on the judiciary, as progressive advocates fret that he may fall short of appointing as many judges as former president Donald Trump did over his four-year term.

With a November 2024 election rematch between Biden and his Republican predecessor looking increasingly likely, Senate Democrats are pledging to remain focused on confirming Biden’s judicial nominees in 2024 and adding to the 166 already approved to sit on the bench.

After two years of matching or exceeding Trump’s pace of judicial appointments, Biden’s rate compared with his predecessor’s slowed in 2023, as Senate Republicans wielded their influence and forced the White House to bargain with them over potential nominees.

Russ Feingold, a Democratic former US senator and leader of the liberal American Constitution Society, said that slower pace has put Biden’s ability to continue to appoint diverse judges to the bench at risk as an election looms that will decide whether he gets a second term and Democrats retain control of the Senate.

“Now we’re looking at a situation where if either the presidency switches or the Senate switches, most of this progress probably will be stopped or greatly stifled,” he said.

Why it matters

Biden throughout his tenure has sought to fulfil a 2020 campaign pledge to bring greater diversity to the judiciary, whose judges have disproportionately been White men and have usually been ex-prosecutors or former law firm partners.

Two thirds of Biden’s confirmed nominees are people of colour, and 108 have been women, according to the Leadership Conference on Civil and Human Rights.

He has frequently nominated civil rights lawyers and public defenders to the bench, as Democrats aim to counterbalance the conservative influence of Trump’s 234 judicial appointees.

Prominent confirmed judges in 2023 included Julie Rikelman, a former abortion rights attorney now on the Boston-based 1st US Circuit Court of Appeals, and Dale Ho, a voting-rights advocate now serving as a federal judge in Manhattan.

“All year long, this Senate majority has prioritised confirming judges who add to the bench’s personal and professional diversity, and we’re going to continue going into the new year,” Senate Majority Leader Chuck Schumer said on the Senate floor on December 11.

But while the Senate confirmed 69 judges in 2023, that number fell below the pace of confirmations during Trump’s third year, when 102 were confirmed.

For several months, the Senate Judiciary Committee struggled to process nominees amid the absence of an ailing panel member, Democratic senator Dianne Feinstein, who died in September.

What it means for 2024

Biden could make up for that slowdown in 2024. He has announced 30 other nominees who have yet to be confirmed. There are 53 vacancies at present on the federal bench awaiting a nominee, and more vacancies are expected.

So, he could, in theory at least, still match Trump’s four-year total.

But 22 of the vacancies are in states with one or two Republican senators, who thanks to a Senate custom known as the “blue slip” have the ability to effectively veto nominees from their states they do not approve of and hold seats open for a potential Republican president.

“There’s plenty of vacancies, but will he be able to nominate in red states?,” said Russell Wheeler, a visiting fellow at the Brookings Institution, who tracks judicial nominations. “That’s the big question.”

Progressive groups have urged senator Dick Durbin, the Judiciary Committee’s Democratic chairman from Illinois, to abandon the “blue slip” custom, which they say has hindered Biden’s ability to appoint judges in conservative-leaning states and much of the South.

Leah Litman, a University of Michigan Law School professor who co-hosts the liberal legal podcast Strict Scrutiny, said Biden’s inability to nominate judges in those states will ensure Republican lawmakers can “do whatever it is they want” without concern courts will block laws they enact.

“We have seen the effect that Republican blockades for district courts has had,” she said.

She pointed to Texas, where Trump was able to fill multiple vacancies with conservative judges who have often been sympathetic to challenges to Biden policies. One, US District Judge Matthew Kacsmaryk in Amarillo, suspended approval of the abortion pill mifepristone. It remains available pending US Supreme Court review.

Durbin has acknowledged “some judicial vacancies in states with Republican senators have languished for months on end”, but he has stood by the tradition and encouraged Republicans to demonstrate they can compromise with the White House.

The White House in recent months has pointed to successes on that front, with district court judges confirmed in 2023 from Indiana, Idaho and Louisiana, and recent nominees pending from Florida, South Carolina and Texas.

Biden closed out 2023 with an announcement that he intended to soon nominate five new judges in states with Republican senators, including two in Texas who have the support of senators John Cornyn and Ted Cruz.