All-Biden Court Shows Partisan Shift in How Judges Get Confirmed

Nowhere are President Joe Biden’s efforts to diversify the federal judiciary more evident than the US trial court in Seattle.

Biden has selected every one of the seven active judges in the Western District of Washington, the only court where he’s had a chance to do so.

All seven are women, people of color, or both. The new composition represents a marked shift for the court, which never had a woman of color before the Biden administration.

Interactive graphic: The seven new judges of the Western District of Washington

The makeover offers a glimpse into a potential future where nomination battles leave courts understaffed for years until a president of the home state senators’ party fills the vacancies.

“We’re going to start moving more toward if not single presidency, at least single party, districts and states,” said John P. Collins Jr., a professor at the George Washington University Law School.

Vacancies in states with two Republican senators are already building up, possibly paving the way for more courts with predominantly Republican-appointed judges if a Republican wins the White House in 2024.

Vacancy Buildup

The Washington court, with locations in Seattle and Tacoma, has been a forum for high-profile litigation. It’s where the American Civil Liberties Union challenged Donald Trump’s travel restrictions on individuals from certain Muslim-majority nations and where the Federal Trade Commission under Biden filed an antitrust suit against Amazon.com.

But until recently, the court faced a severe staffing shortage, aggravated by several departures from the full-time bench at the end of the Obama administration. Those openings remained unfilled through Trump’s term.

Trump prioritized vacancies in states with Republican home-state senators. Consent from both is still needed for district court nominees to advance under the so-called blue slip process.

The Trump administration rejected candidates recommended by the nonpartisan selection committee used by Washington state’s two Democratic senators, Patty Murray and Maria Cantwell. By 2020, the court had just two active judges, who both took senior status after Biden took office, giving the president the entire active bench to fill.

Biden appointed three judges in his first year, a fourth in his second, and three more in the first half of this year.

Tana Lin and John Chun are the court’s first Asian American judges, Lauren King is the first Native American judge on the Seattle court, and Jamal Whitehead is one of the few in the country openly serving with a disability. The court is also now one of a handful that are majority female, with four seats filled by women.

“To, all of a sudden, see a majority of women on the court is just fantastic. My wildest dreams when I started out of law school did I ever think that that would happen,” said Senior US District Judge Marsha Pechman, who was the third woman appointed to the Western District of Washington in 1999.

The new judges’ resumes are similarly varied, in a departure from the former prosecutors and corporate lawyers who held the roles before them. The group includes a former immigration lawyer, tribal court judge and a labor attorney, along with private practice lawyers with extensive experience in civil rights cases and other pro bono work.

“They don’t have a single cookie cutter type of experience,” said Lena Zwarensteyn, senior director of the Fair Courts Program at the Leadership Conference on Civil and Human Rights. “Seeing this type of experience be reflected in all of the seven seats on the Western District of Washington is impressive, both in terms of their individual qualifications and how it blends.”

They also represent some of the country’s youngest federal judges. Lin is in her late 50s, and the youngest, Tiffany Cartwright is still in her 30s.

“It has lowered the average age of the judges by a good 20, 25 years,” Pechman said.

Washington’s Western District, which has a full bench for the first time in more than seven years, also stands out as the largest in the country where the same president appointed all its active judges.

“At least in my experience, I haven’t seen anything quite this stark,” said former Judge Jeremy Fogel, who served on the US District Court for the Northern District of California and is now executive director of the Berkeley Judicial Institute.

Russell Wheeler, a senior fellow at the Brookings Institution and former deputy director of the Federal Judicial Center, said while single-appointee courts “are not unheard of,” but they are more commonly smaller courts than the Western District of Washington.

Just six other federal courts, excluding one-seat courts in US territories, all have active judges appointed by the same president, and none have more than three on the bench. Five are filled with Obama appointees, while one has only Trump appointees.

So even as the Western District’s active bench has become more diverse demographically and professionally, it may be less diverse ideologically.

Ideological Diversity

Fogel said philosophical diversity can help judges “learn from each other and expand each others’ viewpoints,” he said.

Mark Lamb, a Seattle attorney and president of the Federalist Society’s Puget Sound Lawyers Chapter, said, “It’s better for public confidence if you have a more diverse group of appointments. But that said, I do believe that the judges that are here are all people of high quality, or people that have a good judicial temperament.”

Interactive timeline: new judges boast varied resumes

Still, though all appointed by the same president, the new slate of appointees, “are fairly diverse in backgrounds and attitudes,” said Hugh Spitzer, a professor at the University of Washington School of Law.

Washington state’s nonpartisan selection panel ensures recommended nominees are “mainstream establishment bar lawyers,” a system not present in every state, Spitzer said.

The presence of senior judges on the court, which include appointees from the Reagan, Bush and Clinton administrations who’ve continued to take on cases, may also mitigate concerns of ideological homogeneity.

Molly Terwilliger, president of the Federal Bar Association for the Western District of Washington, said she has had an equal number of arguments before senior judges and active judges in the past few years.

“I haven’t encountered a concern about Biden appointees versus other appointees,” Terwilliger said.

Future Pattern?

Federal courts appointed by a single president may be less of a rarity in the future as obstruction over nominations seeps into the district court level.

The 17-seat District of New Jersey, for example, has added eight judges since Biden took office, and one more nominee is pending. The Northern District of California, which has 14 seats when fully staffed, has taken on five members during the Biden era, with a sixth also pending.

Both courts had emergency staffing shortages in the Trump years.

Red state vacancies are stacking up as the 2024 election approaches, presenting similar opportunities to reshape courts should a Republican take the White House.

Roughly 60% of current district court vacancies are for seats in states with two Republican senators. There are eight judicial vacancies across Texas federal courts. Four of those open slots are in Texas’ Western District, where Republican presidents have already claimed six of the court’s 13 seats.

Biden recently put forth his first nomination for a Texas trial court in August, who has the backing of the state’s two Republican senators.

‘Fresh Eyes’

Rapid court turnover as new administrations take office can present challenges for new judges, who must lean on the court’s bench of senior judges for advice.

Pechman said two of the new judges have asked her to be a mentor.

“Every time there is a significant number of new judges, it certainly changes the court,” Chief US District Judge Richard Seeborg of the Northern District of California said in an interview. “I think it’s generally a positive thing because people come in and they have fresh perspective and fresh eyes.”

In response to the wave of new judges on his court, Seeborg implemented a court-specific orientation program that focuses on managing a civil and criminal caseload, organizing chambers, working with the law clerks, and navigating changes to personal and professional lives.

Whitehead, who joined the Western District of Washington in March, said in an interview that the senior judges have been “so welcoming in helping me get up to speed as a new judge.”

“You’re used to seeing these people in black robes on the bench, and now you see them in the hallway, or the parking garage,” he said. “You can pick their brain on a case or ask them for advice.”

King, who was sworn into the Seattle trial court in December 2021, also described a sense of camaraderie among the new judges.

“For those of us who are new, it’s very valuable to see others going through the same learning curve as you,” she said.