Biden Faces Political Dilemma on Stalled Muslim Judge Nominee

Time is running out for the White House to fill a New Jersey vacancy on the US Court of Appeals for the Third Circuit as Joe Biden’s intended nominee remains stalled.

There’s no clear path forward for Adeel Mangi, who’d be the first Muslim judge to serve on the appellate court, after three Democratic senators publicly refused to support his nomination. The Senate is narrowly controlled by Democrats, 51-49.

The White House could swiftly pull Mangi’s nomination and put forward an alternative candidate. Otherwise, they risk waiting too long to act as election year priorities near, potentially leaving the vacancy open for a Republican president and Senate majority, said John P. Collins, a George Washington University law professor who tracks judicial nominations.

“We are getting to a point where if they want to get another candidate confirmed, the time for that is coming up,” Collins said.

But backing down from Mangi’s nomination, amid conservative-led allegations that he’s affiliated himself with antisemitic and anti-police groups, comes with its own political risks. A withdrawal may further alienate Muslim and Arab American voters angry about how the administration is handling the Israel-Hamas war.

Uphill Battle

Mangi’s nomination comes at an opportune time for conservatives seeking to topple Biden and retake the Senate. The Israel-Hamas war and alleged antisemitism on college campuses has already helped them score political victories, including the resignations of two Ivy League presidents.

Conservatives have drawn attention to Mangi’s past affiliation with a Rutgers Law School center they say has platformed pro-terrorism and antisemitic material about the Israel-Hamas war and 9/11. Those critics also cite Mangi’s connection to a criminal justice non-profit with ties to Kathy Boudin, who was convicted for her involvement in a notorious 1981 Brink’s armored truck robbery that resulted in two police killings.

The pressure tactics against the appointment have included digital ads targeting vulnerable Senate Democrats up for re-election such as Bob Casey of Pennsylvania and Jon Tester of Montana, and calling out other Democratic senators on social media.

At least three Democratic senators, including Jacky Rosen and Catherine Cortez Masto of Nevada, have indicated they won’t support Mangi if his nomination comes up for a confirmation vote. That’s more than enough to sink the bid if no Republicans support him.

Senate Democratic leadership could wait until the lame duck session after the elections for a floor vote when political pressure subsides, said Jake Faleschini, justice program director at the progressive advocacy group Alliance for Justice.

“I take these senators at their word that they have concerns with this nominee’s record. But I also just think that the temperature of all this will be dialed down after the election, and there could be a window to confirm Mr. Mangi,” Faleschini said.

That would require carefully timing the vote to ensure enough supportive Democrats are present.

Senate leadership in recent history has typically focused on district court nominees during lame duck sessions. For those trial court picks, a vote to invoke cloture, or end debate, on a nomination and a confirmation vote can be scheduled within the same day. For circuit nominees, 30 hours must lapse between those two votes.

Picking an Alternative

The window for choosing which way to go is beginning to close given how long it takes to fill an appellate court vacancy.

From vacancy to nomination, it’s taken Biden 137 median days to move circuit court nominees from states with two Democratic senators, as is the case in New Jersey, according to Russell Wheeler, a Brookings Institution fellow who researches judicial nominations. The 23 of the 27 who’ve been confirmed did so in 125 median days.

As Democratic senators face pressure to campaign in their home states, fewer will be present and the Senate could meet less frequently, cutting the amount of time to schedule votes on nominees, which will compete against other priorities on the floor.

All of Biden’s remaining judicial picks will be competing with spending, defense, agriculture, and tax bills for time on the Senate floor in the 15 weeks of the session they have left. The traditional August recess and the extra time off slotted for each party’s national convention and the pre-election October recess cuts into that session time as well.

But Wheeler says that Democrats don’t have to follow the traditional approach for scheduling votes on appellate nominees, after Republicans upended those norms with their handling of Justice Amy Coney Barrett’s appointment to the high court.

Donald Trump nominated Barrett in September of his last year in office—eight days after the death of Justice Ruth Bader Ginsburg and 38 days before the 2020 presidential election. The Senate voted to confirm her the following month.

“Amy Coney Barrett was confirmed to the Supreme Court in October, her replacement to the Seventh Circuit was confirmed in December,” Wheeler said. “There is now a precedent there that you don’t have to stop confirming judges.”

Political Consequences

If the White House withdraws Mangi’s nomination and still wants to appoint the first Muslim American to the federal appellate level, Senate Republicans say there’s one already sitting on the federal bench: Judge Zahid Quraishi, the first Muslim life-tenured federal judge.

Several Senate Republicans say they’d happily support Quraishi, whom Biden appointed to the US District Court for the District of New Jersey in 2021. Quraishi, who’s of Pakistani descent and was twice deployed to Iraq with the US Army after 9/11, had a more conservative record of government and military service that appealed to Republicans back then. He was confirmed to the trial court by a 81-16 vote.

Senate Minority Leader Mitch McConnell invoked Quraishi in floor remarks on May 9 when he noted “there is a better way in New Jersey, if only the Biden Administration would care to look.”

But progressive groups such as the Leadership Conference on Civil and Human Rights find “insulting that they’re saying, this is the type of Muslim American we can support, and this is the kind of Muslim American we cannot support,” said Lena Zwarensteyn, senior director of the organization’s Fair Courts Program.

“When we talk about wedging communities, this is almost a false choice—we are really reducing someone only to their religion,” she said.

Pulling Mangi’s nomination could also further harm Biden’s relations with Muslim and Arab American communities, whose continued rebuke of the administration for its handling of the Israel-Hamas war threatens the president’s reelection bid.

“It seems to me Biden just can’t afford to appear to be backing down in support of an Muslim American judicial nominee,” Wheeler said.