Biden’s Recent Court Picks Diverge From Progressive Strategy

President Joe Biden is nominating fewer judges with career experiences important to progressives as the administration seeks to fill as many vacancies as possible ahead of the 2024 election.

Of nominations this year, only four of the 29 or 13% have been public defenders, did other indigent client work, or enforced labor laws. That’s compared to 36% and 48% of those with similar progressive-backed career experiences nominated through the congressional August recess in 2022 and 2021, respectively, according to a Bloomberg Law analysis.

The downturn is mostly due to the bulk of vacancies without a nominee being in states represented in the Senate by Republicans and a home-state custom in the chamber applying to trial court appointments. Republicans can now slow things down just as 2024 election politics are heating up. Democrats also must manage a Senate majority vulnerable to absences.

“Republicans have shown less of an interest in ensuring that we have a more broadly diverse judiciary,” said Caroline Fredrickson, former president of the American Constitution Society and a current professor at Georgetown Law. “The low hanging fruit are prosecutors and corporate lawyers, people are quite comfortable with voting for them, knowing that they voted for so many like them before.”

Progressive Strategy

Progressives have urged Biden to appoint fewer corporate attorneys and prosecutors, traditional paths to the judiciary. Bloomberg Law identified nominees who worked in a full-time capacity on behalf of indigent criminal defendants and civil rights and voting rights plaintiffs. Other career experiences included representing immigrants, labor unions, or workers, and enforcing labor laws.

Biden’s premium on demographic and professional diversity is unprecedented and epitomized by the appointment of Ketanji Brown Jackson to the US Supreme Court. The first Black female justice spent part of her career as a federal public defender.

For the first two years of his presidency, Biden focused on vacancies in blue states, or those led by Democratic senators. That made it easier to select and get support for unconventional nominees.

Most vacancies are now in red states, which are represented by Republicans in the Senate who’ve largely opposed his picks. In mid-February, 38 of the 56 trial court vacancies without a pending nominee were in states with two GOP senators.

Following the latest batch of intended nominees announced Wednesday, red state vacancies account for 31 of 36 current vacancies. Texas and Florida account for 11 current vacancies combined.

An additional six of 20 future vacancies without nominees are in red states, while 13 are in blue states and one is in a purple state, Montana.

Bloomberg Law/Jonathan Hurtarte

Senators also can block district court nominees in their home-states by refusing to return the “blue slip,” a blue form used to convey support for a nominee. While Republicans eliminated blue slips for circuit nominees during the Trump era, Democrats have maintained them under Biden for district seats.

Judicial picks who’ve led more progressive legal careers have been frequent targets of scrutiny by Senate Judiciary Committee conservatives, who’ve branded many of them as radical or otherwise unqualified.

“Your organization is infamous for designating anyone who disagrees with it as a hate group trying to drive them from public life,” Sen. Josh Hawley (R-Mo.) said to former Southern Poverty Law Center deputy legal director Nancy Abudu during her confirmation hearing for a seat on the US Court of Appeals for the Eleventh Circuit. “Is that a record that you’re proud of?”

All six lawyers Republicans have approved for trial court openings in their home states have been sitting judges or come from a law firm or a US attorney’s office.

Progressive Pushback

Biden’s limited success with Republicans this year has come at the price of progressive disapproval. Democratic congressional members and left-leaning judicial advocates have criticized what they see as his reversal on his diversity priorities to win GOP consensus.

“I don’t think it necessarily makes sense for President Biden to take his foot off the gas in this area where he has been so successful, that being diversifying the bench,” said Tristin Brown, policy and program director at People’s Parity Project, which pushes for a more diverse judiciary.

The nominations of two assistant US attorneys for trial courts in Louisiana—including Jerry Edwards Jr., who’d be the first person of color to sit as a judge in the Western District of Louisiana—were lauded by the GOP home-state senators but drew immediate pushback from House Congressional Black Caucus members, all Democrats.

They called on Biden in a letter to withdraw Edwards and Brandon Scott Long. “Nominees should have broad backgrounds including public defenders and attorneys familiar with civil rights laws,” the letter said.

Yet some progressives say Biden’s hands are tied when it comes to getting mandatory support from Republicans for home-state trial court nominees.

It’s up to Judiciary Committee Chair Dick Durbin (D-Ill.) to overhaul how senators can influence nominations in their states, and he’s so far defended the blue slip.

Retaining the practice is “allowing Republicans to have a veto, and really create two different systems of government where even with a Democratic president, the kinds of judges will be different,” said Christopher Kang, cofounder of Demand Justice, a progressive judicial advocacy group.

It also means many red state court vacancies likely will go unfilled. Republicans could forego working with the White House over the next year with Biden up for reelection, said Kang, who worked on judicial nominations as deputy counsel to Barack Obama. Democrats could lose control of the Senate as well.

In an email, a White House official said the administration has been “intentional about collaborating with Republican members” and that they’ve seen “tangible progress.”

Blue States

Biden also has been nominating more lawyers recently with traditional resumes in states led by Democratic senators.

For example, Democrats have signed off on deputy US Attorney Margaret Garnett for the Southern District of New York; and Susan DeClercq, a former US attorney and current director and counsel of special investigations at Ford Motor Co., for the Eastern District of Michigan.

These nominations are less about a change in values among Democrats. They’re more about the illness-related lawmaker absences and controversies surrounding unconventional nominees that created lengthy confirmation delays, said John P. Collins, a George Washington University Law School professor who tracks judicial nominations.

Democrats hold a one-seat edge in both the Judiciary Committee, where tie votes fail, and in the chamber where they can still prevail with the help of Vice President Kamala Harris if one member doesn’t vote or defects, like Sen. Joe Manchin (D-W. Va.) has done more than once.

Lengthy and simultaneous Democratic health-related absences, including those of Dianne Feinstein of California and John Fetterman of Pennsylvania, disrupted the party’s majority in committee and on the floor, holding up several nominees this spring who had no Republican support.

Nominations such as DeClercq, who was chief of the civil division and chief of the civil rights unit at the Eastern District of Michigan’s US Attorney’s office, are meant to maximize buy-in from Democrats and Republicans and as quickly as possible, Collins said. DeClercq would be the first federal judge of East Asian descent in Michigan.

“Professional diversity is more than just public defender experience,” a White House official said. “We have also had nominees this year who have experience as plaintiffs’ attorneys and civil rights lawyers.”

Room for Optimism

Some progressives are still optimistic about what Biden has accomplished this year, adding that the track records of federal prosecutors who enforce civil rights law and attorneys who dedicate substantial time to pro bono work deserve more nuanced scrutiny.

And recent nominations like Richard Federico, a federal public defender, to the Denver-based Tenth Circuit, are giving progressive groups, such as Alliance for Justice, hope that Biden isn’t straying from his promise.

“Our position hasn’t changed. We would still like to see fewer nominees that come from the traditional US Attorney’s office and Big Law tracks,” said Rebecca Buckwalter-Poza, the Aron senior justice counsel at AFJ.

Kang said he hopes that Democrats recognize they have more time to push through confirmations “than the conventional wisdom might suggest,” and that they’ll have time to get through nominees in the post-election lame duck session of Congress should Democrats lose the White House, the Senate, or both.

“There’s so many opportunities to see through these successful confirmations that I think that it’s too early for Democrats to change tactics now,” he said.