President Joe Biden has several federal judicial nominees lined up for California vacancies — but unless they’re confirmed in the next six weeks by the Senate, their chances will fade instantly.

There are six current and future vacancies across California for lifetime federal judicial roles. Biden has selected six individuals who are pending confirmation by the Democratic-held Senate or a review by the Senate Judiciary Committee.

“I’m pretty bullish on what they’ll be able to accomplish,” said Carl Tobias, a professor at the University of Richmond School of Law. This Senate session officially ends and a new one begins on Jan. 3.

President-elect Donald Trump has implored Republicans not to let judicial nominees get confirmed until he takes office, potentially disrupting Senate Democrats’ plans to barrel through as many of Biden’s picks as possible.

Trump was able to move the federal judiciary to the right with more than 230 appointments nationwide in his first term, including five district court judges in California and 10 appeals court judges for the circuit covering Western states. He could cause a shift again in his second term, depending on the number of vacancies.

The White House and Democratic-held Senate are moving as quickly as possible.

Biden just sent paperwork for two of the California nominees to Capitol Hill, the White House said Monday — Judges Serena Murillo for the U.S. District Court for the Central District of California and Benjamin Cheeks for the Southern District. The Senate Judiciary Committee, which has to approve nominees before the full chamber can do so, held a hearing for them this morning. Only one committee Republican came to speak against them, which actually helped speed up the hearing.

The Senate is preparing to vote on three California nominees: Judges Anne Hwang and Cynthia Valenzuela Dixon for the Central and Noel Wise for the Northern. Another nominee, Judge Rebecca Kanter, has yet to have a Senate Judiciary Committee hearing scheduled despite being nominated at the beginning of 2024.

There are four U.S. District Court jurisdictions in California, the most populous state. The Northern District has San Francisco and runs g along the coast from the Oregon border through Monterey. The Eastern District runs from the Oregon border along the Nevada one through Bakersfield. The Central contains Los Angeles, taking San Luis Obispo to the Nevada border through Riverside. The Southern covers San Diego and Imperial counties.

Tobias and other experts think most of these California vacancies can be filled before Jan. 3. More will open up during Trump’s term.

“California has a perennial problem because it has so many judges, it’s hard to keep up with them,” Tobias said. “This would be good, though — they could get most everything filled” before Biden leaves.

California vacancies and case load

Despite the high number of judges, it’s particularly imperative to have California openings filled given the state’s case load. District court leaders have advocated to get more judges via legislation that would set spots for three additional federal judges in the state and more in others.

The Judiciary Committee is still having nominee hearings. After the hearings, the committee must vote on sending the nominee for full Senate consideration.

Majority Leader Chuck Schumer, D-N.Y., is moving quickly to get votes on the schedule. On Monday, the Senate stayed late into the night as GOP senators were using procedural delays to slow the process. On Tuesday, Republican leaders reprimanded members of their party who were absent, claiming if more senators were present, they could have voted down some of the Democrats’ picks.

In the face of Republican slow ups, Tobias said the Democratic response appears to be, “’Okay, let’s get it over with. You want to stay nights and weekends, we could do that too.’ And I think they’re prepared to do that.”

Right now, the Democrats control 51 of the Senate’s 100 seats. When the next congressional term starts on Jan. 3, Republicans will have 53 seats.

Vacancies not filled before this term ends could be filled by Trump with GOP-controlled Senate approval.

“The Democrats are trying to stack the Courts with Radical Left Judges on their way out the door,” Trump wrote on his social media platform, Truth Social, on Tuesday. “Republican Senators need to Show Up and Hold the Line — No more Judges confirmed before Inauguration Day!”

It has not been common in recent history for outgoing presidents to have judicial nominees confirmed in the lame duck session — until Trump in 2020. A lame duck refers to an outgoing official, like Biden now or Trump then.

“Since the Democrats didn’t go to extraordinary lengths to prevent confirmation of Trump’s 13 district judges after he lost the election, it’s only fair for the Republicans to do the same for Biden’s nominees,” said Russell Wheeler, an expert in governance at the nonpartisan Brookings Institution. “But that’s a pretty naive statement, to expect that kind of reciprocity.”

Could Trump shape the California bench?

In addition to potential retirements, deaths or unfilled vacancies, a dozen judges overseeing cases in California will be eligible for senior status once Trump takes office on Jan. 20. That includes judges who were appointed by Republicans and Democrats.

Senior status, if judges choose to take it, allows a reduced workload and salary once they meet a certain age and service threshold. Their spots can then be filled with full-time judges.

California’s Democratic senators could employ the “blue slip” rule against Trump’s nominees. But that depends whether incoming Judiciary Committee chairman Sen. Chuck Grassley, R-Iowa, honors it. Grassley has signaled that he will. Sen. Dick Durbin, D-Ill., the current chairman, honors the blue slip rule with potential district, but not Court of Appeals, judges.

The blue slip rule gives a kind of veto power over judicial nominees to the state’s senators. For California, that will be Democratic Sen. Alex Padilla and Sen.-elect Adam Schiff next session.

California’s senators in Trump’s first term were able to stave off some nominees, Tobias said: “There were 17 vacancies in California when Trump came in and 17 vacancies when he left.”

“They held those vacancies open and they wouldn’t agree to people who Trump wanted, at least the worst ones,” he said.

Tobias and others credit Padilla, a Judiciary Committee member, with helping fill California’s courts during Biden’s term expeditiously.

Schiff, who should be sworn in to the late Sen. Dianne Feinstein’s vacated seat in the next few weeks, does not yet have committee assignments. Sen. Laphonza Butler, D-Calif., whom Gov. Gavin Newsom appointed to hold Feinstein’s seat temporarily, is currently on the Judiciary Committee.

The committee is split with 11 Democrats and 10 Republicans. That’ll flip when the GOP takes over Senate control in January.

Will California senators fight Trump nominees?

Padilla suggested that he would not support Trump nominees if he doesn’t think they’re qualified.

“If it’s somebody that I think is right — not just on their approach to the bench, but has strong credentials and experience to offer — then I’m more than open minded,” Padilla told The Sacramento Bee. “But somebody who’s not, that’s a different story.”

Schiff’s own star rose going toe to toe with Trump during impeachment proceedings, when Schiff was a House member. He has said he does not plan to back down in the Senate.

This all depends whether Trump will want to fill California vacancies. Given his experience the first time around, the Republican might try hard to fill courts nationwide with conservative justices swiftly.

“You’ll likely see Trump try to fill all the lower court vacancies in the first two years pretty quickly,” said Vikram Amar, a professor at the University of California, Davis School of Law, “because holding the Senate after 2026 might be harder — because, always historically anyway, the party in charge loses seats in the off-year election.”

Among the judges Trump got confirmed in his first term were three U.S. Supreme Court justices who helped overturn federal abortion protections and other wins in Republicans’ eyes.

“Trump is going to care about this next time,” Wheeler said. “I’m just guessing that he’s not going to want to appoint any judges who he’s not pretty sure will toe the line and agree with him and his policies.”

There are many reasons why appointees to lifetime judgeships are crucial, experts said.

“Federal judges every day are deciding about who should die and who should live,” said Tobias, “on issues like abortion or imposing the death penalty or basic human rights.”

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