Within two hours of the presidential election being called in Joe Biden’s favor, the liberal American Constitution Society submitted recommendations for judicial nominees to his team.
Biden needs to be prepared to act quickly in a way past Democratic presidents haven’t, ACS President and former Sen. Russ Feingold (D-Wis.) said. His group has been laying the groundwork to help with that for months.
ACS’s 45 working groups across 36 states helped develop the list of progressive judicial recommendations—excluding Supreme Court—and more names are coming. ACS is often seen as a liberal equivalent for the conservative Federalist Society, the group Donald Trump looked to for many of his judicial picks.
The former Judiciary Committee member discussed the road ahead for Biden’s judicial nominations with Bloomberg Law. The following is an excerpt from that interview that has been edited for length and clarity.
Bloomberg Law: How does Biden get judicial nominees confirmed if Republicans win at least one of the upcoming special elections in Georgia and maintain control the Senate under Mitch McConnell (R-Ky)?
Russ Feingold: It is not the same situation for Mitch McConnell as there is now, and that means it’s not going to be quite as difficult in some ways as people think. I’m not at all sure that McConnell is going to be able to maintain a complete ability to have every senator go with him denying every judge that President Biden wants.
BL: So how does this impact nominees? Do they become more moderate to try to appeal to a Republican-led Senate?
RF: I think that’s a false approach. That goes on the assumption that the main concern on McConnell’s part would be trying to make sure judges are moderate. My sense is that they really want hard-line conservatives. They may decide they, in a given situation, to let a liberal or progressive judge through that fits their agenda in some other way. In other words, moderate is not necessarily good enough. That’s why we at the American Constitution Society have submitted after a long process, a very strong list of potential judges, as well as other appointments, that reflect both progressive thinking and views of the law, as well as diversity.
This is something we hear all the time, even from progressives, that a lot of times even the Democratic judges appointed are too often very corporate-oriented. We’re looking for progressive legal talent: people that represented plaintiffs, that are public defenders, that had been community activists, that have worked on the labor side of labor issues during their career.
BL: How does Biden approach a judiciary with nearly no vacancies at the appellate level?
RF: I don’t think that’s going to be the status of things. We have done an analysis of what we think are members of the courts of appeals that have the ability to go on senior status, and my prediction is quite a number of them will choose, at this point with a new president, to go on senior status.
Our goal is to make sure that the administration and the senators are ready. It also means that we think the various senators should make sure that their judicial selection commissions are up and running basically right away. Don’t wait for the vacancy.
BL: Democrats have recently called for court-packing as a response to Trump and Republicans’ decision to push Justice Barrett’s nomination through. How did the court-packing talk, impact Democrats in the election, if at all?
RF: The fact that the Republicans packed the courts in an aggressive and ruthless way did have some impact. I think people finally realized, in many cases younger people, that for generations to come the right was trying to pack the courts in a way that they wouldn’t be able to do much about because these younger judges may be on well into the older years of some of the people who are students now. But I think the goal now is to talk in as bipartisan a manner as possible about the need for judicial reform.
I think it is time for a national conversation about this that is measured, and that could lead to an actual change that would make sense where maybe we could have bipartisan agreement about it.
BL: In October, Biden pushed back against term limits. He has also been on the record pushing back against adding justices to the Supreme Court. Does that hurt any chances for agreement if the president himself has been critical of some of these proposals?
RF: I always criticized these proposals myself throughout my career. For 18 years in the United States Senate—16 years on the Judiciary Committee. But I’ve seen what can happen under Trump and under McConnell, and I think a lot of people are reevaluating whether or not there needs to be some kind of judicial reform. So of course, the fact that the new president has expressed some skepticism about this is important, but that doesn’t mean a commission wouldn’t look at those questions. It doesn’t mean that the president wouldn’t ultimately support some changes, even in that area. But it is a factor.
BL: The last time we spoke, you said ACS wouldn’t be a gatekeeper like the Federalist Society had been. Now that a Biden administration is on the horizon, what has your role been like with the transition team? Have you had any contact with the president-elect?
RF: Not personally, no. But we were able to contact the transition team within two hours of the president-elect being named. We were immediately able to provide very carefully selected, and even vetted, lists for various circuit court nominations and district court nominations, as well as executive appointments. I’m fairly confident we provided one of the best lists that’s ever been provided, and we did it right away because we’ve been working on it for a long time.