Jurisprudence

Democrats Won the Senate. Can They Fix the Courts Now?

Biden is inheriting a crisis in the federal judiciary.

Merrick Garland speaks at a podium labeled Office of the President Elect as Joe Biden and Kamala Harris look on, seated on either side of him on a stage with a backdrop that says Attorney General.
Merrick Garland with Joe Biden and Kamala Harris in Wilmington, Delaware, on Thursday. Chip Somodevilla/Getty Images

With the victories of Raphael Warnock and Jon Ossoff in Georgia, Democrats have flipped control of the Senate. Soon after those results became clear, President-elect Joe Biden finally announced his pick for attorney general: Judge Merrick Garland, whose 2016 nomination to the U.S. Supreme Court was sabotaged by Republicans.

The pick was met by some complaints on the left that Garland is a moderate institutionalist, not exactly a crusader eager to indict Donald Trump and his adult children on day one. But Garland’s nomination leaves behind a gift for progressives. Biden’s team clearly waited to name him until they knew Democrats would control the Senate, allowing them to fill his seat on the all-important U.S. Court of Appeals for the District of Columbia Circuit—seen as both a feeder to the Supreme Court and also tasked with massive regulatory oversight—with a liberal.

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Biden’s picks in both the DOJ and on the bench will have their work cut out for them. Republicans have been stacking the deck against progressive judges for much longer than Trump’s presidency. Senate Republicans blocked President Barack Obama from filling more than 100 seats, vacancies that Trump inherited. With the backing of both Senate Republicans and the conservative legal movement—including putative opponents of the president—Trump got judges confirmed at astonishing rates. He will leave office having appointed three Supreme Court justices, 54 appeals court judges, and 174 district court judges. He flipped three courts of appeals, creating conservative majorities on each. Biden, by contrast, will enter office with just 43 vacancies on district courts and two open seats on the courts of appeals. More judges will retire over the next few years. But unless Congress adds seats, there is virtually no chance that Biden will meet Trump’s record by Jan. 20, 2025.

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The new judicial nominees will need to be progressive enough to counteract the effects of a legal juggernaut unleashed by hundreds of Trump appointees with radical agendas. But they will also need to be more experienced, more diverse, well-respected, and sufficiently well-credentialed to both restore public faith in the judicial branch and also beat back a quasi-revolution that has been fomented against LGBTQ equality, reproductive autonomy, civil rights law, unions, and federal regulations. Trump’s judges, like Trump’s Department of Justice, needed only to set fires. Biden’s will need to both douse fires and also repair profoundly broken institutions and shattered public confidence. The next crop of federal judges must try to repair the judiciary while those who sought to burn it down serve right alongside them.

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But a complete restoration of the federal judiciary cannot occur absent an expansion of the federal judiciary, starting with the Supreme Court. There is a tension here: Democrats cannot defeat the radicalism of Trump’s judges without taking a radical step themselves. Biden has no chance of undoing the destruction Trump has wrought unless he can get his changes past a judiciary that has been stacked solely to stymie them. Reversing his immense damage—to the environment, the immigration system, voting rights, LGBTQ equality, and so much more—will require navigating a series of landmines, in the form of federal judges, laid by Trump. It is inevitable that at least some of Biden’s legislative agenda will be killed in the courts, not because it is unlawful, but because those on the right now have free rein to reshape the law as it suits them.

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We continue to believe that Congress should exercise its constitutional authority to expand the Supreme Court, allowing Biden to rebalance the bench and preserve the institution’s legitimacy. But it’s not clear Democrats will be willing to take such a step. Joe Manchin, a pivotal Democratic senator, has forsworn court expansion and its necessary predicate, the abolition of the filibuster. There are not, it seems, a sufficient number of votes to reform the judiciary in ways that would preserve it as functional. Lack of action ensures that Biden will be boxed in on all sides by the dead hand of the Trump administration.

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Biden’s picks for the Justice Department afford us the first glimpse into his approach to this problem. He has appointed DOJ leaders who have spent their careers working within the system to change it. Garland will serve alongside fierce civil rights advocates, including Vanita Gupta and Kristen Clarke, who have lengthy careers dedicated to voting rights, criminal justice reform, and racial inequality. Gupta was an advocate who moved seamlessly to Obama’s DOJ, then returned to advocacy, where she battled Trump’s DOJ. Clarke worked for the New York attorney general before leading the civil rights coalition that fought Trump in court for four long years.

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Biden has not revealed any judicial nominees yet, but we can safely assume they will follow along these lines: extraordinarily accomplished, brilliant team players with deep faith in the endurance of America’s constitutional order. Indeed, Biden’s team has already asked Senate Democrats to send him potential nominees from diverse backgrounds, focusing on public defenders, legal aid lawyers, and civil rights attorneys—all dramatically underrepresented on the federal bench. The plan is to make the bench more representative of all Americans, while still coloring within the lines.

The hitch, of course, is that Trump has revealed that the Constitution is an easy mark. We have now witnessed one immutable truth: With enough political support behind him, the president can distort, defy, or simply ignore constitutional commands. As he does so, he can appoint judges with a jurisprudence rooted in grievance, not justice. Judges who degrade vulnerable litigants, disparage non-Christians, and defame women who exercise their reproductive rights. Biden’s judicial nominees will have to work alongside these people. His DOJ will have to beg them not to implement the Republican Party platform from the bench. We suspect it will not take very long for Biden’s appointees to grasp the full scope of the judiciary’s radicalization under Trump.  But this is not something the executive branch can repair on its own.

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Congress has the power to rein in a federal judiciary that subverts democratic values and fundamental rights. It does not seem willing to deploy this tool in the very near future, and time is already running out. There are dark days ahead for our courts, and the coming clash will be clarifying. Biden’s Justice Department will seek to roll back the odious legal legacy of the Trump administration. His judicial nominees will wage war—collegially, in eloquent dissents—against the ascendant jurisprudence of Trumpism. And it won’t be long before we see structural distortions to voting rights, the census, as the machinery of democracy itself is being manipulated by judges wishing to cement minority privileges. In fact, it’s already happening. The coming years will involve a delicate recalibration of the relationship between the institutions of justice and justice itself. Those are not just fights for Biden, or the judiciary, or the DOJ. We will all need to be part of a process that is equal parts institutional repair and radical change.

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