Between now and January 3, Senate Majority Leader Chuck Schumer (D-New York) has one job: to convene the Senate to confirm President Joe Biden's judicial nominees that have already cleared the Senate Judiciary Committee. That committee, by the way, also has just one task to do before then: to hold hearings on Biden's nominees that have not come before it yet and forward them on to the full Senate. Biden, incidentally, nominated two more federal judges last Friday, his 56th round of judicial nominees, according to the White House. January 3 is when the new 119th Congress will begin and the Senate, at least, will be under Republican control. (The leadership of the House of Representatives is still uncertain due to vote counts continuing in several close races.)
The reasons for the focus on federal judges are obvious, and Politico last week reported there are nearly 30 judicial nominees still waiting to be confirmed. For one thing, the upper chamber of Congress will have 53 Republicans, which means they will control all the committees and the calendar for floor votes. Secondly, with President-elect Donald Trump returning to the White House for a second term beginning January 20, he will have the ability to nominate archconservatives to federal judgeships — and we expect him to do just that. He likely will also nominate inexperienced judicial candidates who are not well qualified, like he did with now-federal Judge Aileen Cannon in Florida, who threw out Trump's classified documents case — on the first day of the Republican National Convention, no less. Cannon is also set to oversee the case of the man charged in the attempted assassination of Trump at his golf course in West Palm Beach, Florida in September.
After it became clear on election night that the GOP would take back the Senate, Senator Elizabeth Warren (D-Massachusetts), who herself was easily reelected last week, highlighted this urgent matter. "While still in charge of the Senate and the White House, we must do all we can to safeguard our democracy," Warren wrote in a Time magazine editorial. "Senate Majority Leader Chuck Schumer must use every minute of the end-of-year legislative session to confirm federal judges and key regulators — none of whom can be removed by the next president."
Federal judges are lifetime appointments. According to a list compiled on Wikipedia, during Trump's first term, the Senate confirmed his three conservative U.S. Supreme Court justices; 54 judges to the U.S. Court of Appeals; and 174 to U.S. district courts. In Biden's first term, the Senate confirmed his one Supreme Court justice; 44 to the appeals court; and 166 to the district courts. Four of Biden's appeals court nominees are awaiting Senate confirmation, and one is pending before the Senate Judiciary Committee. At the district court level, 10 nominees are awaiting confirmation votes by the Senate, and 13 are awaiting committee hearings. That all adds up to much work for the Senate to accomplish during its lame-duck session.
Congress can be productive when it needs to, even during lame-duck sessions. It was back in December 2010, with House control shifting to Republicans in January 2011, that Congress approved repeal of the military's antigay "Don't Ask, Don't Tell" policy, which then-President Barack Obama signed days later. It was one of then-House speaker Nancy Pelosi's (D-San Francisco) crowning achievements on behalf of the LGBTQ community.
It seems that Schumer is getting the message. On Tuesday, the Senate was set to reconvene after the Veterans Day holiday and take up a judicial nomination, according to Politico. But we need to see much more in the coming days and weeks. Congress will take breaks for the holidays, and then Senate leadership will change.
We noted last week our deep concern that with Trump winning the presidential election, the lower courts, once the last chance for LGBTQs to secure rights that government and businesses deny, will likely be made up of more conservative judges — that is certainly the case at the Supreme Court — resulting in terrible decisions. The Supreme Court is set to take up a transgender case in early December when it hears oral arguments in U.S. v. Skrmetti, a challenge brought by transgender youth and their families to a Tennessee law banning gender-affirming medical care. In a recent news release about the case, the American Civil Liberties Union, which is representing the families, along with the ACLU of Tennessee, Lambda Legal Defense and Education Fund, and Akin Gump Strauss Hauer & Feld LLP, noted that Tennessee Attorney General Jonathan Skrmetti "has asked the Supreme Court to expand its ruling overturning Roe v. Wade and allow the state to target transgender people's autonomy over their own bodies, too."
"We've seen just how far extreme politicians will push to deny us our reproductive freedom, from banning abortion to threatening IVF to even threatening to put doctors in jail for providing emergency care, with deadly consequences for women's lives," stated Jennifer Dalven, director of the ACLU's Reproductive Freedom Project. "The same politicians who are trying to control women have now set their sights on transgender people and their families and are trying to control their bodies and lives. Allowing politicians to continue down this road could hold severe implications for the freedom of all people to decide what is right for their own body."
Extreme indeed. That's why it's so important that Biden's judicial nominees be confirmed, so that the federal courts (with the exception of the Supreme Court, obviously) include judges that are fair-minded and follow the law, rather than pander to the right-wing and interpret the law to meet their own discriminatory beliefs. Schumer must be focused on the judiciary in these final weeks of his leadership. Every nominee that is not confirmed will be replaced by one chosen by Trump. The Senate must not allow that to happen.
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