Biden under pressure from progressives as he prepares to pick first judges
Donald Trump’s historic shakeup of the roster of US federal judges will not soon be reversed, despite his exit from the White House.
In just one term, Trump managed to replace more than 25% of federal judges overall and more than 30% of powerful circuit court judges. His picks were disproportionately white men with conservative views on immigration, abortion and the environment. With lifetime appointments, those judges will have a strong influence on the course of American life for decades to come.
But Joe Biden has an opportunity to reverse some of the damage, as progressives see it.
While Trump and his Republican accomplices left a small number of judicial vacancies on the table, additional vacancies have already arisen as judges retire or take “senior status” with curtailed workloads – steps certain judges were known to be putting off as long as Trump was in office.
This past weekend, Judge Barbara Keenan of the fourth circuit court of appeals, a Barack Obama appointee, announced that she would take senior status in August, creating a 10th vacancy at the appeals court level for Biden to fill.
“I certainly think it’s a factor that judges held off on taking senior status” when Trump was in office, said Daniel L Goldberg, legal director of the progressive Alliance For Justice, “so they could not be replaced by an ultraconservative judge who wished to turn back the clock on so many of our rights.”
Judicial watchdog groups see early promising signs in the Biden administration’s approach to the challenge. Incoming Biden administration lawyers sent a letter to senators in December requesting a racially and ethnically diverse pool of judicial recommendations, just as Barack Obama had done before Trump’s white male makeover.
The Biden letter also asked for judges from outside the Ivy League and corporate pipeline, which was not a priority for Obama.
“We are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench,” the Biden letter said, “including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
On Monday, the White House press secretary, Jen Psaki, said judicial nominees were something Biden was “focused on personally”.
But as Biden prepares to make his first judicial nominations, advocacy groups are watching carefully to see whether he follows through on that stated priority. And the first recommendation to come Biden’s way to be made public has drawn objections in some progressive circles.
To fill a vacancy on Colorado’s federal district court, Senator Michael Bennet of Colorado, a Democrat, recommended Regina Rodriguez, a former federal prosecutor originally nominated by Obama, whose mother was detained in a Japanese internment camp and who would be the second Latina in history to serve on the court.
But Rodriguez, currently a partner at the multinational WilmerHale law firm, also has roots in the corporate world, drawing accusations that her advancement exemplified “fealty to big law”.
The progressive judicial advocacy group Demand Justice has produced a video ad opposing the recommendation – which is not yet an official nomination.
“President Biden is ready to make a change, restoring balance to the courts by appointing lawyers who stand up for regular people,” the ad says. “But Bennet is standing in the way, demanding Biden appoint another corporate law partner.”
Through the lens of Trump’s appointments, Rodriguez would be a favorable shift for progressives but progressive groups have served notice that Biden must aim for a different standard.
That pressure could collide with
political reality. With a razor-thin Democratic majority in the Senate, Biden cannot afford to lose the support of a single Democrat for any of his nominees, if Republicans stay unified in opposition. That dynamic could drive nominations toward the center.
Advocacy groups have praised the new administration for announcing it would bypass a review process by the American Bar Association (ABA), the country’s largest legal professional group, on potential judicial nominees.
The ABA review process, used by past administrations, has been criticized on the left as a pipeline for the halls of corporate law to the federal bench. But ABA recommendations have also been rejected on the right as too liberal, and Trump ignored the organization in favor of candidates hand-picked by the conservative Federalist Society.
Biden, for now, has a relatively limited ability to remake the courts. Long gone is the dream of some Democrats to win a decisive Senate majority in the election last November and pass legislation that would add seats to the US supreme court. Instead, Biden must work with the limited number of vacancies he has.
There are 10 vacancies at the circuit court level, counting one active judge who has announced he will semiretire this summer. That compares with dozens of circuit vacancies Trump found when he came into office, thanks to obstruction of Obama nominees by the then Senate majority leader, Mitch McConnell. Trump installed 24 circuit judges in his first two years.
“Biden has a tremendous opportunity right off the bat to put on the bench individuals with a demonstrated commitment to equal justice who, as Donald Trump knows –long after Joe Biden leaves the White House, the people he puts on the bench will have the ability to make a difference in the lives of the American people,” said Goldberg.
As for the supreme court, all eyes are on a potential retirement announcement from the liberal justice Stephen Breyer, 82. Biden has promised to nominate an African American woman, the first in history, to the court as soon as possible. There is already pressure from Democratic lawmakers in Congress for Biden to line up a nominee for the next vacancy.
In the chess game of judicial appointments, the identity of that potential nominee could depend on the confirmation of Biden’s attorney general nominee, Merrick Garland.
Garland is a judge on the District of Columbia circuit court, which has jurisdiction over many cases involving the federal government and has traditionally served as a staging ground for future supreme court nominees. His confirmation would create a vacancy on the court.
Widely seen as a potential replacement for Garland is Ketanji Brown Jackson, a district judge in Washington DC.
Jackson was one of the few Black women to be vetted by Obama for a potential supreme court nomination. And as a widely respected judge, a former public defender and working mother, she appears to fit the description of the kind of candidate Biden would be looking for if he has the chance to fill a supreme court seat.
“The Biden administration seems to be ready to prioritize judges like never before,” said Goldberg. “Every signal we’ve received is that they are moving as expeditiously as possible to identify and nominate and, hopefully, confirm.”