Joe Biden probably knows more about judge selection than any new president in American history.
As a longtime member and former chairman of the Senate Judiciary Committee, Biden oversaw hundreds of court approvals. He chaired the 1987 hearing that successfully convinced the Senate to reject Judge Robert Bork's nomination to the Supreme Court; then directed a far less successful hearing that preceded the 1991 confirmation of Justice Clarence Thomas.
As President, he approached judicial selection with a serious intent that has not been seen in a Democratic White House, at least since the Carter administration. With eight Biden judges currently sitting at the Bundesbank, including three appeals court judges, Biden has appointed more judges at this point in his presidency than any newly elected president since Richard Nixon.
Biden has nominated 22 more and he has the potential to shape a large part of the Bundesbank very quickly. There are currently 82 vacancies across federal justice, nearly 10 percent of the bank, although most of those positions are held in relatively lower-ranking district courts.
When I speak to liberal advocates dulled by years of failed efforts to get Democrats – including the White House Obama – to take judicial appointments as seriously as Republicans, their attitudes towards Biden range from moderate to enthusiastic almost to ecstasy. Although Biden received some criticism from his leftist for nominating two labor lawyers on the management side for vacancies in New Jersey, almost all of the lawyers I spoke to were delighted with Biden's overall record on judicial nominations.
Former Wisconsin Senator Russ Feingold, who now heads the liberal American Constitution Society, told me that Biden's efforts to obtain legal confirmation are "off to a tremendous start." Daniel Goldberg of the Alliance for Justice, an organization that spent the Trump years creating research memos warning about the former president's candidates, summed up his opinion on Biden's stance toward judges in one word: "superb."
And yet, while liberal legal war veterans now have the presidency, many of whom have hoped for their entire careers, Biden may be five years late. The sad reality for the new president is that he will likely need every ounce of political skill and institutional knowledge gained after decades of confirmation from judges to withdraw justice from where his predecessor left it. And he still can't do it.
Biden had been president less than a week when the first Trump judge made a decision that sabotaged one of his policies. The judge was Drew Tipton, a federal Texas judge with only a few months of bank experience, and the sabotage policy was a 100-day deportation hiatus announced by the government on Biden's first day in office.
Tipton's view of why he blocked the deportation moratorium contradicted decades of precedent. And Tipton was hardly the only judge who behaved like this during Biden's young presidency.
J. Campbell Barker, another Trump judge in Texas, issued a ruling in February that, if taken seriously, could deprive the federal government of regulating the national housing market. In July, Judge Andrew Hanen, a judge whose nativist tendencies are so well known that anti-immigrant plaintiffs visit his courtroom to ensure they get a benevolent hearing, dismissed the Deferred Action for Childhood Arrivals (DACA) program Hundreds of thousands of immigrants are expected to stay in the country.
The Supreme Court spent the first few days of summer smashing unions, protecting conservative political donors, and crushing the voting rights law. The court has also spent the past few years laying the foundations to remove much of the Biden government's powers, regulate the workplace, expand access to health care, and protect the environment.
In other words, President Biden began his presidency deep in a hole. He faces a 6-3 Conservative Supreme Court and dozens of Trump's lower court justices eager to make a name for themselves (and possibly get a promotion in a future Republican government) by undermining democratic politics. He is the heir to an Obama administration, at least early on treated legal affirmations as a pesky distraction from other business, and to a Trump administration that treated the judiciary as its most enduring legacy.
And that legacy could include the suspension of Biden's entire presidency.
The Obama White House dropped the ball
President Barack Obama's judiciary nominees have faced several structural obstacles that do not hinder Biden. When Obama took office, the filibuster allowed Republicans to block any candidate who didn't have the support of the super majority in the Senate, and it allowed the GOP to slow the Senate's business to a terrible creep, even if the Democrats did the 60 votes had to break an obstruct.
The Senate has changed these rules Have judges confirmed by simple majority and limit the power of the minority party to delay most of the confirmatory votes.
The then Justice Chairman of the Senate Patrick Leahy (D-VT) – like so many other Democrats who hold on to their own idiosyncratic notions of how institutions should function at the expense of governance – Insisted that Republican Senators veto anyone nominated for vacant federal justice in their state by taking an unusually broad view of a Senate tradition known as "blue slip". The current chairman, Senator Dick Durbin (D-IL), will not allow Republicans to veto at least some of Biden's candidates, particularly his candidates in powerful appeals courts.
Obama also had a Supreme Court position in his freshman year, making it difficult for the White House or the Senate to pay so much attention to lower court candidates.
But even if Obama had a more difficult hand than Biden on forensic confirmations, he played that hand terribly.
For at least the first year of his presidency, Obama filled his White House with high-ranking officials who either viewed the judiciary's validation process as a chore or who lacked experience in judicial policy.
Rahm Emanuel, Obama's first chief of staff, reportedly said in a room full of activists that he "does not attend to court hearings." Greg Craig, Obama's first White House attorney, was a former State Department official who showed more interest in Obama's honoring but failed efforts to close the Guantanamo Bay prison than in the selection of judges.
Obama, meanwhile, got Craig to hire Cassandra Butts, a personal friend and classmate of Obama's law school with a notable career on Capitol Hill and left-of-center politics. (Disclosure: In 2015, I interned on the domestic policy team at the Center for American Progress, which butts ran.) Craig made her his assistant who oversaw the appointment of judges.
But while Butts was undoubtedly qualified to work in the White House, she had limited experience in judicial policy. And her legislative background also didn't fit well with a White House attorney's office that placed credentials like a clerkship at the Supreme Court or practice in a law firm with white shoes on a pedestal. That seems to have diminished their influence.
The result of this mixture of inexperience and indifference is that Obama's early White House was often slow in nominating judges. And it stumbled into traps that helpers more familiar with judicial policy could have avoided.
Here's an example: About two months after Obama's presidency, the White House announced that it would nominate Indiana Federal Judge David Hamilton to a seat on the United States Court of Appeals for the Seventh District. Hamilton was Obama's first candidate for justice, and the president intended to use Hamilton's nomination to give Republicans an olive branch.
The New York Times described Hamilton as "someone who is said by lawyers that he represents part of the traditionally moderate burden of his state." And Hamilton enjoyed the support of his home state, Republican Richard Lugar.
But if the Obama White House had paid more attention to Hamilton's record as a federal district judge, they would have known he wasn't the judge to be sold as a peace offer to Republicans.
Among other things, Hamilton blocked an Indiana law that effectively required most abortion patients to visit two clinics before they could have an abortion. And he handed down two religious freedom rulings that were apparently designed to infuriate Republican culture fighters. The first was of the opinion that a state legislature could not open its session with a prayer to "Jesus" because such a prayer preferred Christianity to other faiths. The second opinion stated that a prayer to "Allah" could be a valid non-sectarian prayer since "Allah" is just the Arabic word for "God".
The point is not that Hamilton was wrong about any of these decisions, or that it shouldn't have been confirmed on the Seventh Circuit. Hamilton is an excellent judge, and the rule of law depends on judges willing to make decisions that may make them unpopular. But a White House filled with veterans of past judicial affirmation battles would have understood that a judge with Hamilton's record of abortion and religion would create significant opposition from Republicans.
And he triggered it. Republicans filibustered his nomination. When Hamilton was finally ratified, every Republican senator opposed him except Lugar.
Although Obama's legal certification efforts became more sophisticated later in his presidency, they never fully recovered from their early missteps. In eight years as president, Obama appointed only 55 federal appellate judges – just one more than Trump appointed in just four years in the White House.
Biden has learned from Obama's mistakes
The benevolent interpretation of Obama's early missteps by the White House is that it had a lot on its plate. It tried to get the nation out of a catastrophic recession and didn't want to get bogged down in arguments over judges. As Feingold told me, for much of the Obama presidency, judicial nominations were "lagging".
But President Biden faces at least as many challenges as Obama did in his first term. Biden is also trying to revive a stalled economy, and he's doing so as the world tries to contain what is hopefully a one-off pandemic. Biden is also facing an opposition party that increasingly regards Democrats as illegitimate. Republicans worked hard to undermine Obama's political agenda, but even the Obama-era Republican Party made no attempt to sabotage an investigation into a violent attempt to topple the United States government and install Donald Trump as president.
Yet, with so many crises to deal with simultaneously, Biden still sustained more judges at this early stage in his presidency than any other board chairman in the past half century. He has hired senior executives who understand judicial policy and take affirmative judges very seriously. It is "clear that the White House Attorney's Office and the Oval Office consider this a high priority," Feingold said.
"Having Ron Klain (White House Chief of Staff) in the White House was the best we could hope for in nominating judges," said Molly Coleman of the People's Parity Project, a group that organizes and organizes law students young lawyers to "dissolve the legal system and build a judicial system that values people over profits".
Klain oversaw President Bill Clinton's nomination efforts, including confirming the late Judge Ruth Bader Ginsburg. Coleman told me that when she was a law student at Klain, it was clear that the future chief of staff was “proud” of the time he spent getting Clinton's nominees to the bank.
So he's a long way from Rahm Emanuel. Klain was one of the White House's greatest cheerleaders for forensic affirmations.
With the confirmation of Judge Griggsby, @POTUS has confirmed more judges to the Bundesbank before July 1st than any president in the last 50 years! https://t.co/isXGhntLI4
– Ronald Klain (@WHCOS) June 16, 2021
White House attorney Dana Remus reached out to Democratic senators a month before Biden's presidency to use her local expertise in the often arduous process of identifying law candidates from individual states. And the Biden White House also hired Paige Herwig, a former Senate Justice Committee employee who also worked for the liberal justice group Demand Justice, to oversee judge nominations.
This is a team that knows what to do in the selection and approval of judges.
Why Liberal Groups Are So Happy With Biden's Judges
As I spoke to liberal right-wing groups in 2020, I kept hearing that they had two requests from a Democratic White House regarding judges. They wanted nominees who were demographically diverse, but they also wanted nominees who had diverse experiences to help those most in need. One common complaint about President Obama has been that he has appointed too many corporate law firm partners, too many prosecutors, and too few civil rights attorneys or public defenders.
Biden's transition team signaled that he would respond to these requests a month before he took office. In a December 2020 letter to Democratic Senators, Remus told these lawmakers that, “With regard to US District Court positions, we are particularly focused on nominating individuals whose legal experience has historically been underrepresented at the Bundesbank, including those who who are public defenders, civil law ”. Lawyers and Lawyers, as well as those who represent Americans in all walks of life.
So far, the Biden White House has achieved its goal of appointing judges from diverse backgrounds. One of Biden's first legal appointments was Judge Zahid Quraishi, the first Muslim American to sit on the Bundesbank. In all of American history, only 11 black women have served before a United States appeals court. Three of them – Judges Ketanji Brown Jackson, Candace Jackson-Akiwumi, and Tiffany Cunningham – have been appointed by Biden in the past six months.
Both Judges Jackson and Jackson-Akiwumi are former public defenders, as is Eunice Lee, a Biden candidate for the Second Circuit. Myrna Pérez, another of Biden's candidates for that court, leads the voting rights project at the Brennan Center for Justice. Jennifer Sung, a Biden Ninth Circle candidate, is a former union organizer and union litigator.
"People who in the past never even thought of becoming a judge" are now being nominated, Goldberg of the Alliance for Justice told me. In many cases (though not every case), Biden sidesteps the kind of highly professional attorneys most likely to be politically affiliated in favor of more service-minded attorneys.
Also, at least at the appointment level, the typical Biden candidate is someone who has chosen to spend much of his pre-trial career in the public service despite having the kind of credentials that could have qualified him for a much more lucrative career. Jackson, Jackson-Akiwumi, Lee, Pérez, and Sung all served for a federal appeals judge – an elite rating usually reserved for the top performing young attorneys – and Jackson also served for Supreme Court Justice Stephen Breyer.
And yet, with all of his early successes, it remains to be seen whether Biden can keep up the pace.
Biden has mostly nominated people for the easiest legal positions to fill
Another thing that Biden's nominees have in common is that with two Democratic senators, they are mostly from blue states. These are the easiest positions to fill for a Democratic President, as allied lawmakers are more likely to work with Biden to identify potential candidates. But it is also due to the legacy of an old patronage system that still gives senators an overwhelming influence over their state's nominees.
Prior to the Jimmy Carter administration, the White House generally paid tremendous deference to home state senators in selecting federal judges – in fact, the Senate Judiciary Committee often declined to hear a candidate when the president tried to vote someone other than the election appoint the candidate's home state senator. President Carter weakened the role of senators by setting up a now defunct merit selection committee to select appellate judges, but senators continue to play an overwhelming role in the selection of trial judges.
The primary mechanism for maintaining this system of patronage is the "blue slip," named after the blue slip that home state senators use to indicate whether they approve of a candidate. Under Senator Leahy, home state senators were allowed to veto any candidate for federal court in their state. However, the committee's current practice is to only allow senators to veto district judges, the lowest rank among federal judges appointed for life.
But even a limited blue slip rule poses problems for Biden. It's hard to imagine that senators like Josh Hawley (R-MO), who threw their fists up in solidarity with the protesters who later attacked the U.S. Capitol to overturn Biden's election, would approve of anyone nominated by Biden . And even many Republican senators who accept the 2020 election results will likely prefer to leave an open seat of justice vacant rather than fill it with a Biden candidate.
There are currently vacant seats in Texas, Ohio, Indiana, Wisconsin, Oklahoma, Alabama, and Florida, all of which have at least one Republican Senator. Ultimately, it is up to the Durbin Senate Judiciary to decide whether Republican senators can veto nominees if they don't intend to confirm a vacancy for Biden.
A potentially even more difficult political issue for Biden is what to do about Democratic senators dragging their feet when the White House solicits their input on potential candidates in their state. Or if they offer recommendations that do not correspond to Biden's values. Biden could easily bypass such senators, but doing so has its own risks. Especially in a Senate where the Democrats have the closest possible majority, there are obvious reasons why the White House may be reluctant to piss off a Democratic senator.
There's also one final, more pragmatic reason the White House might prefer to work with home-state senators when they can. Senators are more familiar with their state's lawyers than the president and his aides, and may be able to propose outstanding candidates who would otherwise be overlooked.
There are potential workarounds if a senator refuses to make such a contribution – Zahra Mion of the NAACP Legal Defense and Education Fund told me that "Florida has some state legislatures already set up commissions" to identify potential candidates, for example. However, since senators have historically advised presidents on appointing judges, it is more likely that a senator has already set up such a commission and built relationships with their prosecutors that enable them to provide good advice.
What if Biden gets everything right and it is not enough?
The elephant that shows up over Biden's efforts to shape the bank is that judicial selection always has some degree of randomness. Biden – and liberal democracy in general – would stand on a much stronger footing if the Supreme Court Justice Ginsburg had lived just a few months longer and Biden could choose her successor. And Judge Stephen Breyer's decision to keep his seat during what may be a very brief window in which the Democrats control the Senate could easily end in disaster for both the Democratic Party and Democracy itself.
“The conventional wisdom,” Coleman of the People’s Parity Project told me, “is that we don't have the full four years to confirm nominees. We have until halftime. ”And even that may be optimistic. If Republicans regain control of the Senate – either through an election or through the death or departure of a Democratic Senator – GOP leader Mitch McConnell will likely become almost the same Impose complete blockade of the Supreme Court of Biden and contest candidates he imposed on Obama when he had McConnell in power to do so.
McConnell has previously suggested that no candidate for the Biden Supreme Court be confirmed if Republicans take control of the Senate.
The other potential catastrophe looming over the Biden White House is what happens when the Supreme Court rogues, invalidates Biden's policies on the flimsy legal arguments, or even allows Republican lawmakers to directly manipulate elections ? Biden has signaled that he is unwilling to add seats to the Supreme Court to stave off this issue and it is unlikely that Biden could get such a bill through Congress if he changes his mind. His influence on the judiciary will ultimately be shaped by which judges leave the bank during his tenure.
It will take more than a lifetime experience for Biden to validate judges if he hopes to reverse Trump's influence on the judiciary. He's going to need good luck too.