Times-Herald (Vallejo)

Biden gets 1st shot at making mark on judiciary

- By Mark Sherman

President Joe Biden has two seats to fill on the influentia­l appeals court in the nation’s capital.

WASHINGTON >> President Joe Biden has two seats to fill on the influentia­l appeals court in the nation’s capital that regularly feeds judges to the Supreme Court.

They are among the roughly 10% of federal judgeships that are or will soon be open, giving Biden his first chance to make his mark on the American judiciary.

Barring an improbable expansion of the Supreme Court, Biden won’t be able to do anything about the high court’s entrenched conservati­ve majority any time soon. Justice Clarence Thomas, at 72, is the oldest of the court’s conservati­ves and the three appointees of former President Donald Trump, ranging in age from 49 to 56, are expected to be on the bench for decades.

Democrats traditiona­lly have not made the judiciary a focus, but that is changing after four years of Trump and the vast changes he made. Biden’s appointmen­ts are also the only concrete moves he has right now to affect the judiciary at large, though there is talk about expanding the number of judges on lower courts.

The nearly 90 seats that Biden can fill, which give their occupants life tenure after Senate confirmati­on, are fewer than former Trump inherited four years ago. That’s because Republican­s who controlled the Senate in the final two years of the Obama White House confirmed relatively few judges.

Included in the tally are 10 seats on federal courts of appeals where nearly all appeals, other than the few dozen decided by the Supreme Court each year, come to an end.

One seat is held by Merrick Garland, whose confirmati­on as attorney general is expected in the coming days. Another longtime judge on the court, David Tatel, has said he is cutting back on his duties, a change that allows Biden to appoint his successor.

Chief Justice John Roberts, Justice Brett Kavanaugh and Thomas were appellate judges at the courthouse at the bottom of Capitol Hill before they joined the high court atop the Hill.

The late Justices Antonin Scalia and Ruth Bader Ginsburg also served on the appeals court, where they first formed their lasting friendship.

Following Scalia’s death just over five years ago. President Barack Obama nominated Garland to the Supreme Court, but Senate Republican­s didn’t give him even a hearing, much less a vote.

When Trump took office in January 2017, he had a high court vacancy to fill. Trump ended up making three Supreme Court appointmen­ts to go along with 54 appellate court picks and 174 trial judges, aided by then-Senate Majority Leader Mitch McConnell’s determinat­ion to, as he put it, “leave no vacancy behind.”

Democrats and their progressiv­e allies say they’ve learned a lesson or two from the Republican­s, and intend to make judicial nomination­s a greater focus than in past Democratic administra­tions.

“It’s an exceptiona­l situation where you have a president and the people around him people who really see this as a high priority,” said former Sen. Russ Feingold, the Wisconsin Democrat who served with Biden in the Senate for 16 years. Feingold now is president of the American Constituti­on Society.

“I think President Biden knows that a part of his legacy will be undoing the damage done by Trump to the extent possible,” Feingold said.

So far, liberal groups are encouraged by the signals the White House is sending. White House counsel Dana Remus wrote senators in December that recommenda­tions for new judges should come within 45 days of a vacancy.

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