Republicans’ success at filling court vacancies means President-elect Joe Biden might have to wait a while before he can make his mark on the judiciary, even with a newly Democratic-controlled Senate to approve his choices.
When vacancies open up, the question is whether Biden has the appetite to be as aggressive as Republican Donald Trump has been, and progressives in his party want him to be.
Past Democratic presidents haven’t shown the same ardor as Republicans for remaking the bench, a pattern that could repeat itself if Biden focuses on combating the pandemic and recession.
“This is something Republicans get that Democrats have struggled with,” said Jeremy Paris, former chief counsel for nominations and oversight on the Senate Judiciary Committee and lead staffer for former Chairman Patrick Leahy (D-Vt.). “If it’s not a focus, we will win the election and still lose.”
Biden’s 14 years as chairman or ranking member of the Senate Judiciary Committee made him reluctant to endorse radical changes in judicial nominations. He’s shown little enthusiasm for adding Supreme Court justices, an idea embraced by progressives to dilute Republican appointees’ 6-3 majority.
“He’s more in the mold of following the traditional path of trying to change things from within the system,” said Justin Wedeking, a professor at the University of Kentucky and co-author of “Supreme Court Confirmation Hearings in the U.S. Senate: Reconsidering the Charade.”
Until Amy Coney Barrett’s elevation from the Seventh Circuit to the Supreme Court in 2020, every seat on the federal courts of appeal was full—the first time that had happened in at least 40 years. Nearly 30% of the 179 circuit judges are Trump appointees.
Aided by the Republican-led Senate, Trump made more than 230 lifetime judicial appointments in four years, including three Supreme Court justices. Biden won’t have many opportunities to counter that ideological shift early on. Other than filling two appellate vacancies and Merrick Garland’s seat on the D.C. Circuit, which he said Thursday he’d do promptly once Garland’s confirmed as attorney general, Biden’s initial choices will involve replacing other Democratic appointees.
At least 38 Democratic-appointed appeals court judges will be eligible to take a form of semi-retirement known as senior status in January, according to a Bloomberg Law analysis of Federal Judicial Center data.
“I suspect you’re going to see a lot of Democratic-appointees take senior status, knowing Biden will appoint their successor,” Russell Wheeler, a Brookings Institution visiting fellow who studies judicial nominations and a former deputy director of the Federal Judicial Center.
Appointing judges to those seats won’t shift the courts’ ideological balance toward Democratic appointees, Wheeler said. The ability to do that may hinge on how many judges seated by Republicans are eligible for senior status at the time of Biden’s Jan. 20 inauguration take that option. There are at least 26 of those, according to the Federal Judicial Center data.
Trump didn’t make trial courts as big a priority as appeals courts. Those lower courts don’t have as much lasting impact on the shape of the law, but they’re where Biden could make an early impact, particularly in states with two Democratic senators.
Home-state senators still have a say in who the White House nominates to vacancies in their state, via the so-called blue slip for nominations at that level. The blue slip custom, which Trump honored, prevented him from putting his stamp on blue-state district courts.
Biden, of course, isn’t the only impediment to court-packing. It’s not yet clear that all Senate Democrats agree on eliminating the filibuster, said Lauren Bell, a dean and professor at Randolph-Macon College who has studied judicial nominations and the filibuster.
That may make adding seats to lower courts more palatable. The non-partisan policy making body of the federal judiciary, the Judicial Conference, has been requesting new judgeships from Congress for years due to increasing workloads.
The most recent request included five new appeals court judges for the San Francisco-based Ninth Circuit and 65 trial judges. Seats were last added to the courts of appeal in 1990.
Democrats’ razor-thin majority means they’ll need to convince a substantial number of Republicans to sign onto a lower court expansion, something that could prove difficult unless many of the new judgeships are left unfilled until after the next presidential election.
Diversity Over Ideology
While Biden might be able to make progressives happy with some lower court picks, Wedeking said his choices will “be slightly left of center, liberal, but not as far left as the progressive wing of the party would like.”
In a Dec. 22 letter to Democratic senators, incoming White House Counsel Dana Remus said Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
Barack Obama set the record for the proportion of female judicial appointees. More than 40% of Obama’s nominees were women, and of that, 35% were women of color, according to a 2017 report published in the Journal of Law and Courts.
Biden has already said if given the opportunity, he’d appoint a Black woman to the Supreme Court. The most likely opportunity for that would come if Justice Stephen Breyer, the oldest member of the court at 82, steps down.
Biden will also have an aggressive partner in the Senate to shepherd those nominations through. Sen. Richard Durbin of Illinois, the No. 2 Democrat in the Senate, is likely to take the gavel on the Judiciary Committee following Sen. Dianne Feinstein’s departure as ranking member. Feinstein of California came under intense criticism from progressives for what they characterized has her lack of aggressiveness during the Supreme Court confirmation hearings for Barrett and Brett Kavanaugh.
Speed is Key
Remus’ Dec. 22 letter asked Democratic senators to send selections for federal district court seats within 45 days of a new vacancy in their state. She also asked that senators send in three names for each current district court vacancy by Jan. 19, the day before the inauguration.
Biden may also face pressure from progressives to give less deference to senators or rely less on screening commissions that those senators use to select nominees.
In its letter, the transition team asked senators who planned to use commissions to set them up immediately, regardless of whether their state had current vacancies, and review nominees on an ongoing basis. Critics say the commissions, which were established during President Jimmy Carter’s administration, pose barriers to women and people of color.
“The Carter system did bring more diversity, but it’s very slow,” Victoria Nourse, a senior adviser to Biden when he was Judiciary Committee chairman and his counsel when he was vice president.
She said the slowness of the process, including use of a nominating commission, is one of the problems that impacted her own appeals court nomination, which was blocked by Senate Republicans. With his experience, Biden will know that issue well and may be able to address it, Nourse said.
“Any of those norms or procedures that can be linked to putting up barriers to women or people of color, I think any of those barriers that are linked to that will probably be looked at very hard,” Wedeking said.
And there are groups already working to support that mission.
“We can’t let this get away again, as happened to some extent when President Obama came in,” said former Sen. Russ Feingold (D-Wis.), president of the liberal legal group the American Constitution Society.
Two hours after the election was called in Biden’s favor, Feingold said his organization sent a list of possible judicial nominees to Biden’s team. That list was developed by the organization’s more than 40 working groups across the country looking to identify diverse candidates.
“Obviously a new administration would have a huge amount of things to deal with on day one, but our belief is that the fixing of the judiciary has to be at the absolute top of the list this time,” Feingold said.
Career in Nominations
Biden’s experience with judicial nominations extends to his staff. Ron Klain, who will be Biden’s chief of staff, was chief counsel on the Senate Judiciary Committee and worked on nominations in the Clinton White House. Vice President-elect Kamala Harris, too, was a Senate Judiciary Committee member.
Biden also brings considerable baggage to judicial nominations given his role in many of the early confirmation wars in the Senate, said Bell, who was a Judiciary Committee fellow.
Biden oversaw Democratic opposition to President Ronald Reagan’s 1987 nomination of Robert Bork, and the 1991 nomination of Justice Clarence Thomas—the two Supreme Court nominations. Biden has faced criticism for how, as Judiciary chairman, he handled Anita Hill’s allegations of sexual harassment against Thomas.
Biden’s own words from his long Senate career have also been used against him.
Republicans cited his 90-minute 1992 floor speech as evidence that Democrats would block a Supreme Court nominee in an election year. Republicans invoked what they called the “Biden rule” during their successful blockade of Garland, who was nominated to the high court by Obama but never got a hearing.
Bipartisanship was needed to get nominations through during Biden’s time in the Senate. Since then, William & Mary professor Neal Devins said the chamber has become more polarized as norms have fallen, and Biden might not fight that.
“That’s just in keeping with the changing practices of the Senate, and I think Biden won’t try to buck the trend of partisanship,” he said.
—with assistance from Jordan Rubin