Even if Harris wins, Democrats likely to find judge confirmations harder

For the past 3 1/2 years, Democrats - with control of the White House and the U.S. Senate -- have enjoyed a clear, albeit narrow majority to appoint and confirm federal judges.

That could change in January, depending not only on whether Vice President Kamala Harris defeats former President Donald Trump in the November election but also on whether Democrats hold onto their Senate majority.

As the Senate returns to a three-week session Sept. 9, Democrats in the chamber - along with the White House - face pressure to get as many judicial nominees through while they still can.

A victory by Trump, along with a Senate majority, would give him another opportunity to reshape the federal bench, which might include flipping the 9th U.S. Circuit Court of Appeals so that Republican appointees are in the majority. The appellate court currently has 16 Democratic and 13 GOP appointees.

Trump appointed 10 judges to the 9th Circuit during his first term. Biden has appointed eight, replacing Democratic appointees with younger judges - keeping the 16-13 Democratic majority in place.

Three 9th Circuit judges appointed by President Bill Clinton - Judge Ronald M. Gould, 77; Judge Johnnie B. Rawlinson, 71; and Judge Kim McLane Wardlaw, 70 - have not taken senior status. No circuit judge appointed by a Republican president has done so either.

Harris might have more constraints even if she prevails in the election, given the distinct possibility that Republicans will retake control of the Senate, where they need to win a single contested race with a favorable electoral map to get control of the chamber.

If that happens, the new Republican majority leader would control whether votes on nominations happen at all, and the Senate Judiciary Committee could kill any of Harris' nominations before they reach the Senate floor.

As a result, Democrats feel a sense of urgency to confirm more judges before and after the election, including four California district court nominees who have been approved by the Senate Judiciary Committee and a fifth who has yet to have a committee hearing.

But they must deal with political considerations before the election in case a controversial nominee hurts the chances of a Democratic incumbent in a swing state.

"The razor-thin Democratic majority and near-unified Republican opposition makes confirmations difficult as a practical matter, especially given reluctance of Democrats running for office this year in close elections to take hard votes," Russell Wheeler, a non-resident senior fellow at the Brookings Institution, wrote in an email Friday.

He said Senate Majority Leader Chuck Schumer, D-NY, might be more inclined to call floor votes on disputed nominees after the November election, when the Senate is scheduled to be in session for five weeks.

Lame duck confirmations didn't used to occur, but Senate Republicans confirmed 14 judicial nominees after the 2020 election after Trump lost.

Biden has yet to appoint replacements for Senior U.S. District Judge Gonzalo P. Curiel in San Diego, who took senior status on Sept. 7, 2023; and U.S. District Judge Cormac J. Carney in Santa Ana, who retired in May.

An attorney who has been involved in helping choose Biden's judicial nominees said he was "not sure" why the president has not picked anyone to fill those vacancies.

Another uncertainty is the fate of San Diego County Superior Court Judge Rebecca S. Kanter, a longtime federal prosecutor, for a Southern District vacancy. Biden picked her in January, but she has not had a nomination hearing before the judiciary committee even as other Biden choices have been confirmed.

Carl T. Tobias, a professor at the University of Richmond School of Law, said Friday he thinks there is something wrong with Kanter's nomination and that she needs to have a committee hearing this month to have a chance. "I just assume [her nomination] is dead," he said.

The four district court nominees who are awaiting floor votes are Los Angeles County Superior Court Judge Michelle Williams Court, Los Angeles County Superior Court Judge Anne Hwang, State Bar Court Judge Cynthia Valenzuela Dixon - all nominated for the Central District - and Alameda County Superior Court Judge Noel Wise for the Northern District.

All those judges passed out of the judicial committee on partisan votes, with Wise drawing ire from Republican senators over opinion pieces she wrote over the years, including one that criticized Trump over the lack of diversity of his judicial nominees.

"I think Wise is going to make it, but it will be close," Tobias said in a phone interview.

But any other late nominations may be a problem. "The calendar works against you in committee," he said, noting the time needed to hold a nomination hearing and then schedule a business meeting.