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Filling Lower Court Vacancies in Congress’ Lame Duck Session


In this midterm election year of 2022, the nation’s divided political parties are in a battle royale to win the exceedingly close Senate majority. One important explanation for the fight is that the party which assumes the next Senate majority will necessarily have considerable power to affect the confirmation of federal judges. For example, during Donald Trump’s presidency, Republicans controlled the Senate; therefore, the chief executive and the upper chamber proposed and confirmed fifty-four accomplished,
extremely conservative, young appeals court, and 174 district court, jurists. The Republican White House and Senate majority confirmed judges by rejecting or deemphasizing the rules and conventions that have long governed the selection process and concomitantly provided highly capable, mainstream jurists who improve ethnic, gender, sexual orientation, ideological, and experiential court diversity. Former President Trump and the Republican chamber in the 116th Congress approved fourteen lower court judges promptly after Joe Biden had defeated Trump. These phenomena have jeopardized federal court ideological balance, citizen regard for the judicial selection process, and federal court diversity. Notwithstanding which party realizes a majority in this November’s midterm elections, the present slim Democratic Party majority needs to rapidly convene a lame duck session, which rigorously canvasses and confirms myriad jurists after the imminent elections. Those factors deserve review to comprehend how President Biden and Senate lawmakers can best promote appointments
throughout the upcoming lame duck session.

Carl Tobias *

*Williams Chair in Law, University of Richmond School of Law.