President Trump was able to remake the federal judiciary by nominating a flood of young, conservatives judges. Now the Democratic counter-offensive is underway.
The first tranche of President Biden’s judicial nominees are moving through the Senate Judiciary Committee, which will vote on five of his nominees Thursday.
Whether Biden will be able to match Trump’s influence on the courts is, in one sense, a game of numbers. Trump was able to put 234 judges on the bench. Biden, currently, has 81 vacancies to fill, with at least another 30 seats on the bench expected to open up in the months to come. So far, Biden has announced 20 nominees.
“We have so much damage to repair, I would like to see the pace really increase,” said Zinelle October, executive vice president of the progressive legal organization American Constitution Society.
But for advocates and Democratic senators alike, quality is just as important as quantity.
“Joe Biden is so focused on distinction and diversity — those are the key qualities,” Senate Judiciary Committee Democrat Richard Blumenthal (CT) told TPM.
All five nominees being considered by the committee Thursday are people of color. One nominee, Zahid N. Quraishi, who’s been selected for New Jersey’s U.S. district court, will be the federal bench’s first Muslim American judge if he is confirmed.
Professional diversity has been a focus as well, aimed at shaking up the dominance that former prosecutors and corporate lawyers have on the bench.
Two of the nominees up for committee consideration Thursday — U.S. District Judge Ketanji Brown Jackson and Candace Jackson-Akiwumi, who have been nominated for appellate courts in D.C. and the 7th Circuit, respectively — worked as federal public defenders. If they, and the three other former public defenders Biden has already nominated for circuit court positions, are confirmed, Biden will have already matched the number of former public defenders that President Obama put on federal appeals courts.
A Wake Up Call For Democrats
The 174 district court judges confirmed under Trump puts him, not surprisingly, a bit behind the the number of district judges confirmed by the two-term presidents that preceded. But Trump was extraordinarily successful at getting his nominees to the appellate court bench. Fifty-four appellate judges were confirmed under Trump, giving him only one fewer appellate judge in four years than the 55 Obama was able to get confirmed in his eight.
Trump’s appointees also skewed very young — the average Trump appellate judge was 47 years old when nominated — meaning they could be on the bench for decades. And the trend towards legislative logjam has expanded the role they’ll play in settling political questions.
“Nature abhors a vacuum and Article III is going to fill that vacuum,” said Gabe Roth, the executive director of the nonpartisan group Fix the Court. “You’ll see more and more cases headed to the courts which, over time, means that those 230-odd judges will have a larger impact than maybe a similar number that a previous president had.”
Trump’s confirmation success — especially when it came to the Supreme Court — has made those stakes more clear for both Democratic senators and the party’s voters. Biden voters were much more likely to say that Supreme Court appointments were a major factor in their presidential choice than Clinton voters, according to exit polling.
At this point in the first term of Obama’s presidency, Democratic senators had not gotten around to setting up the commissions that funnel candidates to the White House, according to Christopher Kang, an alum of the Obama White House.
“The pace of nominations is really reflective of the fact that senators are understanding their role and their need to prioritize judicial nominations,” said Kang, who is co-founder and chief counsel of Demand Justice, a liberal judicial group.
Fulfilling Biden’s Vision
Biden himself chaired the Judiciary Committee when he was in the Senate, while his chief of staff, Ron Klain, had previous experience working on judicial nominees from both the White House and Senate committee perspectives.
The urgency with which the White House views judicial nominees was evident in a December letter sent by the then-incoming White House counsel Dana Remus. She told Democratic senators that whenever a district court vacancy opened in their state, the White House wanted them to provide the names of three candidates to fill it within 45 days.
But Trump’s Senate impeachment trial and the COVID relief bill push sucked up the first few months of the chamber’s floor time. Trump, by comparison, had his first appellate judge confirmed by late April, 2017, and had already filled a Supreme Court seat.
Even with the focus from the Biden White House, “it is going to be very hard here because it’s a 50-50 Senate,” Sen. Chris Coons (D-DE), a Judiciary Committee member and Biden ally told TPM. “And we know from the last few years that Mitch McConnell’s top priority is a conservative federal judiciary.”
“I frankly think we should be in more days and dedicate more floor time to nominations as we move forward,” he said.
The conservative groups that backed Trump’s judicial push don’t plan on sitting on the sidelines.
The Judicial Crisis Network — which spent big to support McConnell’s blockade of Obama’s last Supreme Court nominee, as well as to advocate for the confirmation of many of Trump’s nominees — will be looking to “shine a light on what’s happening, where there are nominees that are extreme enough that we can marshal the votes to block them,” its president Carrie Severino told TPM.
Then there’s the tension with the progressive groups that have been focusing on expanding the professional diversity on the court. One of the nominees before the committee Thursday — Regina M. Rodriguez, a nominee for the district court in Colorado — has faced some backlash for her corporate law experience defending McDonald’s in a racial discrimination case. Even though Remus asked for three candidates from each senator whose state had a vacancy, Sen. Michael Bennett (D-CO) reportedly sent only Rodriguez’s name.
The other two district court nominees before the committee also have the traditional backgrounds in corporate law or federal prosecutorial offices that progressive advocates are urging Biden to think outside of.
“You see here where President Biden wants to be,” Kang said, referring to the White House’s request that senators help Biden nominate “public defenders, civil rights and legal aid attorneys.”
“But he needs the Democratic caucus to send him those candidates for the district court in order to achieve his vision,” Kang said.
Corrected: A previous version of this story misstated the state Sen. Chris Coons represents.