President Joe Biden's judicial nominees appear nowhere on the ballot in Tuesday's U.S. midterm elections but his ability to keep reshaping the federal judiciary hinges on the results of the voting that will determine whether his fellow Democrats keep control of the Senate.
The Senate has the authority to confirm a president's nominees to the federal judiciary including the Supreme Court. Biden's Republican predecessor Donald Trump put a major emphasis on getting judicial nominations confirmed as he worked to move the judiciary rightward.
Biden, aiming to nudge the judiciary back leftward and make it more reflective of America's diversity, has managed to match Trump in the number of such nominees confirmed - 84 - at the same point in their presidencies.
His appointees include Ketanji Brown Jackson, the Supreme Court's first Black woman justice. Among Biden's confirmed appointees, 75% are women, 25% are Black and 17% are Hispanic - a greater degree of diversity than any of his predecessors achieved in a judiciary long dominated by white men.
"It will go down as one of the great achievements of the Biden administration," said Russ Feingold, a Democratic former U.S. senator and leader of the liberal American Constitution Society, which has advocated for Biden's judicial nominees.
Democrats control the Senate by the slimmest possible margin and Republicans are aiming to erase that on Tuesday. If Democrats retain control, Biden has a chance to match or surpass Trump's mark of having 234 judicial nominees confirmed over four years.
If Republicans take over the Senate - with Senator Mitch McConnell in line to return as majority leader - they could slow the confirmation process to a crawl. McConnell did just that during Democratic former President Barack Obama's tenure.
"For the last two years, the Democrat-run Senate has been more of a rubber stamp than an equal partner on judicial nominations," McConnell said in a statement to Reuters provided by his office. "I expect that to change if Republicans are in the majority next year."
During the last two years of Obama's presidency, McConnell blocked consideration of a Supreme Court nominee - an action with little precedent in U.S. history that enabled Trump instead to fill a vacancy - and allowed votes on just two appellate court nominees.
If Republicans secure a Senate majority in the election, they would not actually take control until January. That means Democrats could make a mad dash until then to confirm as many as possible of the 57 remaining nominees Biden has sent the Senate, 25 of whom already have advanced through the Senate Judiciary Committee and are awaiting action by the full chamber.
Among those awaiting confirmation is Julie Rikelman, a Biden nominee to the Boston-based 1st U.S. Circuit Court of Appeals who was the lawyer who argued unsuccessfully to preserve abortion rights in the Supreme Court case that overturned the 1973 Roe v. Wade landmark that had legalized the proceed nationwide.
Others include Bradley Garcia, who would become the first Latino to serve on the influential U.S. Court of Appeals for the District of Columbia Circuit, and Dale Ho, an American Civil Liberties Union voting-rights advocate who Biden nominated to be a federal district court judge in New York.
'LOOK LIKE AMERICA'
Biden's 2020 campaign website promised judicial nominees who "look like America, are committed to the rule of law, understand the importance of individual civil rights and civil liberties in a democratic society."
He has called Senate confirmation of Jackson one of his proudest days in office. Biden also has secured confirmation for 14 other Black women to federal judgeships. Most recently, the Senate in September confirmed Arianna Freeman as the first Black woman on the Philadelphia-based 3rd U.S. Circuit Court of Appeals. Circuit courts are the regional federal appellate courts one step below the Supreme Court.
Eight of Biden's confirmed circuit court nominees, including Freeman, worked in the past as public defenders representing indigent criminal defendants - bringing a different perspective than a former prosecutor, a more common background for judicial appointees. That number represents a record for any president, according to the liberal activist group Demand Justice.
With the risk of Democrats losing control of the Senate, liberal groups have prodded Judiciary Committee Chairman Dick Durbin to speed up the processing of nominees by holding more hearings and allowing more than just the usual five or six to appear before the panel every two weeks. Durbin has resisted.
A Democratic committee aide, speaking on condition of anonymity, said changing procedures would risk provoking Republicans into boycotting hearings and preventing the panel from having the quorum needed to vote on nominees.
"President Biden and Senate Democrats have made it a priority to elevate highly qualified judicial nominees - and we've done so at an outstanding pace despite the unique constraints of an evenly divided committee and the longest 50-50 Senate in history," Durbin said in a statement to Reuters provided by his office.
Senator John Cornyn, a Republican Judiciary Committee member, said in September that Senate control by his party would not stop Biden from nominating judges but would give Republicans "more leverage to negotiate" to head off nominees who are "ideologues."
"It will not be mindless obstruction, but it will be careful consideration on a nominee-by-nominee basis to ensure they are within the judicial mainstream and enjoy bipartisan support," said Mike Davis, a former Republican Senate Judiciary Committee aide who heads the Article III Project conservative activist group.