As of February 1, there were 57 court federal vacancies waiting to be filled, giving President Joe Biden a chance to begin to make his mark on the judiciary.
As a matter of context, over the past four years, Donald Trump, with the help of former Senate majority leader Mitch McConnell (R-KY), filled 226 judicial seats (54 appellate judgeships and 174 district judgeships) plus three Supreme Court vacancies. Despite the strong focus on judicial appointments in the previous Congress, Biden already has the ability to fill one fourth as many seats as Trump did in his entire four-year term.
The number of openings for Biden is expected to grow as federal judges—including many who have been waiting for a leadership change—take “senior status.” This is when judges who have turned 65 or served at least 15 years opt to take a lighter caseload. More than 60 judges are eligible to do so—most of whom were nominated by Democratic presidents. And there could even be a US Supreme Court opening if Justice Stephen Breyer, 82, should decide to retire. Biden has promised that his first Supreme Court nominee will be a Black woman. (The nonprofit Demand Justice has a campaign they called “She Will Rise” focused on just this.)
Nonetheless, time is not on Joe Biden’s side, as the Democrats’ slim Senate majority adds pressure to fill vacancies before the 2022 midterm elections. Trump, during his administration, mainly named white male appointees. An estimated 85 percent of his judicial appointments were white and 76 percent male—the least diverse showing since the presidency of Ronald Reagan. Biden intends to name more women; more Black, Latinx, Asian, and Indigenous people; and more people who are LGBTQ.
To push Biden to follow through on his commitments, many progressive legal advocacy groups and nonprofits are already mobilizing. Demand Justice, mentioned above, was formed in 2016 by Brian Fallon, former director of public affairs for the US Department of Justice under President Obama, and Christopher Kang, who served as deputy counsel to President Obama and Special Assistant to the President for Legislative Affairs. The group describes itself as “a progressive movement fighting to restore the ideological balance and legitimacy of the federal courts by advocating for court reform and vigorously opposing extreme nominees.” Today, its focus is on reforming the courts and keeping an eye on who gets nominated to open seats.
Another leading advocacy group is the liberal Alliance for Justice (AFJ), long known for its federal judiciary activism. Its Building the Bench initiative focuses on identifying and advocating for “highly qualified and demographically and experientially diverse nominees for the federal courts with a demonstrated commitment to equal justice.” A key part of its work involves recruiting lawyers for the upcoming rounds of court openings and schooling them in how to navigate the judicial nomination process.
The word “diversity” ought to be noted by the Senate Judiciary Commission as it screens nominees for lifetime judicial appointments. The lack of diversity among nominees over the last four years has left the courts out of balance on many levels. This discrepancy is most obvious in terms of racial and gender diversity, but this lack of diversity can be seen in other aspects as well.
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Almost all of Trump’s nominees, for example, had been prosecuting attorneys and came from prominent law firms. Biden has made it clear he’s also looking for judges who have experience as public defenders and civil rights attorneys, and who have represented everyday Americans. Attorneys who have represented workers and tried cases about civil rights, women’s rights, and issues of gender, immigration, the environment, and consumer welfare have largely been lacking in the past four years’ judicial nominations, but are likely to get greater consideration from Biden’s team.
Will these nominations move quickly? The Senate agreed this week on a power-sharing agreement and can now operate committees with Democratic chairs. The Judiciary Committee chair will be Senator Dick Durbin of Illinois. Durbin has not always moved quickly, but nonprofit advocacy to even the judicial scales may spur more rapid action.
Some lessons learned from Durbin’s Republican predecessors may serve to guide the process. As Ann E. Marimow and Matt Viser in the Washington Post indicate, Senate Majority Leader Charles Schumer can follow McConnell’s lead and tee up an “assembly line of lower-court judicial nominees and quickly move nominees to a confirmation vote.” US Supreme Court nominations may take longer. As more judges retire, more vacancies can be filled, and they can be filled more quickly as groups and organizations are lining up highly qualified, highly diverse candidates to fill them.
“All of these judges care deeply about their courts and the administration of justice and would not have wanted to leave the bench shorthanded with nominations possibly held up in the Senate,” says Kang, chief counsel of Demand Justice. “But with Democrats in now, we’re in a place where nominations can move more quickly.”
But judicial nominations are often far from simple. The impact of Trump judicial nominations was seen and felt in the last week when a federal judge in Texas, a Trump appointee, blocked Biden’s 100-day deportation “pause” in a challenge brought by the Texas Republican attorney general.
While Democrats may be able to pick up Senate seats in 2022 (they defend 14 seats and Republicans defend 20), politics is never a sure thing and it is common for the party out of power to make midterm gains. So, moving judicial nominations forward as quickly as possible is seen as an imperative by many Democrats.
Because judges hold lifetime seats, the stakes on these appointments are high, and they demand nonprofit and social movement advocates’ attention.—Carole Levine