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President Biden’s nominee to serve as the first Black woman judge on the 3rd Circuit Court of Appeals failed to win confirmation in the Senate Tuesday after two Democratic senators missed the vote: Sens. Maggie Hassan (N.H.) and Tammy Duckworth (Ill.).  

Public defender Arianna Freeman’s nomination to the appeals court failed by a vote of 47 to 50. Senate Majority Leader Charles Schumer (D-N.Y.) voted “no” to give him the procedural flexibility to bring her nomination back to the floor at a future date.  

Hassan and Duckworth were absent, as was Republican Sen. Todd Young (R-Ind.). 

Every Republican present voted against the nominee.  

If both absent Democrats had been present and voted “yes” along with Schumer, Freeman would have won confirmation in a 50-49 vote. Democrats also could have won Freeman’s confirmation in a 49-49 vote, with Vice President Harris breaking the tie because of Young’s absence.

Hassan is in New Hampshire, where voters are taking part in primary elections on Tuesday. Hassan also cast her vote in New Hampshire on Tuesday morning.

A senior GOP aide said Freeman’s confirmation failed because of Democrats’ “attendance problems,” while a senior Democratic aide downplayed the setback as something that happens from time to time in a narrowly divided Senate.  

Freeman’s nomination to serve on the Philadelphia-based 3rd Circuit divided the Judiciary Committee along partisan lines earlier this year. Democrats and Republicans deadlocked 11-11 on a vote to discharge her to the floor.  

A graduate of Yale Law school, Freeman has worked as a public defender for the Eastern District of Pennsylvania, representing state and federal inmates in challenging their convictions and sentences.  

The Senate voted in June to discharge her nomination from the Judiciary Committee by a vote of 50 to 48.  

The failed confirmation vote could delay the start of the debate on the Respect for Marriage Act, which was expected to begin at the end of this week, if Schumer decides to bring Freeman back to the floor quickly. 

This story was updated at 2:06 p.m.