Start nominating judges, Joe Biden, and fast

[Bloomberg]( Follow Us [Get the newsletter]( Get Jonathan Bernstein’s newsletter every morning in your inbox. [Click here to subscribe](. Former President Donald Trump, Senate Republican leader Mitch McConnell and their GOP colleagues tried their best to leave the federal judicial bench as full as possible before Democrats took control of the White House and Congress this month. Trump’s speed in nominating judges was one of his strengths as a president. Yet [vacancies remained and new ones have already opened up](. Huffpost’s Jennifer Bendery [has the story](: Thirteen judges have already retired since the November election. Five of those left during the first week of the Joe Biden presidency. Five were chosen by President George W. Bush. That’s the most interesting part. It’s not surprising that judges selected by Democrats would wait until Trump was out of the White House to retire, but apparently a handful of Republican-nominated judges either preferred being replaced by a Democrat to having Trump pick their successor, or at least were willing to let that happen. The first challenge for Biden concerning judicial appointments will be to move as fast as Trump did, rather than revert to the slower nomination pace of President Barack Obama. Biden knows that the Democrats’ Senate majority is as tenuous as it can be, and may not last long. He knows, too, that in 2015-2016, Senate Republicans used their majority to shut down judicial nominations, notably by refusing to consider Obama’s choice of Judge Merrick Garland to fill the Supreme Court seat vacated by the death of Justice Antonin Scalia, but extending to federal appeals court and district court nominations as well. The Bush nominees who retired recently suggest another tough set of decisions for Biden. His administration so far has been filled with mainstream liberals. Most Democrats will expect the same from the judges he selects, and it certainly seems likely that the majority of Biden’s judicial choices will reflect the party’s philosophical preferences. No doubt his Supreme Court choice, if he gets one soon (with Justice Stephen Breyer a good bet to retire strategically with a Democrat in the White House), will be very liberal. But ideology has typically been less of a requirement at the district court level. It seems possible that if Biden shows more diversity of approaches in his picks there, he might induce more Republican-nominated judges, especially those who are unenthusiastic about the current radicalization of their own party, to retire sooner. Or Republican-nominated judges who are ready to retire but might otherwise hang on through the 2024 elections might instead allow Biden to replace them. It’s unclear how many judges fit in that category, but I suspect there are some, especially after the last 10 weeks of Trump’s presidency. The flip side of that approach is that Biden wouldn’t be maximizing the ideological advantages the party could get from the vacancies that show up early. So it’s not easy to know what the best path might be. Other than one thing that is certain: Whatever choices he makes, keeping judicial nominations a priority and filling them quickly is the best strategy. 1. Nathaniel Persily and Charles Stewart III on how to [improve U.S. election administration](. 2. Rachel Beatty Riedl and Kenneth Roberts on how to fight back against an [anti-democratic political party](. 3. Seth Masket on [the pandemic and the 2020 election](. 4. My Bloomberg Opinion colleague Joe Nocera on the [current condition of the Consumer Financial Protection Bureau](. 5. Barbara Rodriguez on some of the social issues being debated in [state legislatures this year](. 6. Greg Sargent on [Biden’s policy answer to Trumpy Republicans](. 7. And an important story from David E. Sanger in the New York Times about [how the Biden administration is taking shape rapidly](, but not (for the most part) through Senate-confirmed nominees. My question for executive branch experts: Is the slow, barely functioning confirmation process leading to more authority for presidents? That’s what it sounds like to me. Get Early Returns every morning in your inbox. [Click here to subscribe](. Also subscribe to [Bloomberg All Access]( and get much, much more. You’ll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close. You received this message because you are subscribed to Bloomberg's Early Returns newsletter. [Unsubscribe]( | [Bloomberg.com]( | [Contact Us]( Bloomberg L.P. 731 Lexington, New York, NY, 10022