Jurisprudence

Biden Borrowed the Federalist Society’s Tactics. Good.

Except his first slate of judicial nominees represents actual diversity.

Joe Biden smiles. He has clovers in his suit jacket pocket for St. Patrick’s Day.
President Joe Biden at the White House on March 17. Erin Scott-Pool/Getty Images

On Tuesday morning, the Biden White House rolled out a blockbuster list of judicial nominations that offered a little something for everyone who has been critical of the ways in which Democrats have historically approached the federal judiciary. The 11 nominees’ racial, gender, and religious diversity is a sharp break from years of Trump nominees who were overwhelmingly white and male. More urgently, the list mollified critics of prior administrations by drawing from a broader range of professional backgrounds, including civil rights attorneys and public defenders. It includes nine women and nine people of color. Nominees include pathbreaking candidates such as Judge Ketanji Brown Jackson for the U.S. Court of Appeals for the District of Columbia Circuit—one of three Black women for seats on the federal appeals courts—plus what would be the first Muslim American federal judge, Zahid Quraishi, and Candace Jackson-Akiwumi, a former longtime federal public defender for the all-white 7th U.S. Circuit Court of Appeals. But perhaps the most striking aspect of this first list of judges is how very much it draws from the playbook developed by the court-obsessed conservative legal movement.

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In one important way, the names on Joe Biden’s first list are a striking rebuke to the hackneyed claims from conservative legal activists that they simply couldn’t scare up a woman or person of color in their quest to seat more than 220 federal jurists over the past four years, and that such people were judicial unicorns and remarkably difficult to come by. (Already the deeply capable Brown Jackson is being singled out by some in that same movement for having a “middling reputation.”) The three Black nominees for appeals courts seats and four Asian American and Pacific Islanders on this list reflect the reality that women, people of color, and young lawyers of diverse professional backgrounds are ready and willing to serve in the highest echelons of the judiciary if the party in power values their service.

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But also, credit where it is due: It’s amply clear that Biden’s judge-picking machine has learned some important lessons from the Federalist Society’s stranglehold on judicial selection. The game has now changed for both sides. For one thing, Biden moved very quickly on judges and announced a big slate; both moves that served George W. Bush when he named a big tranche of 11 judicial nominees in a ceremony in May of 2001. With this new list, Biden outpaces his predecessors. By this point in their first terms, Barack Obama had made a single judicial nomination, and Donald Trump had named two. But Biden is also flooding the field in a way that is closer to a Republican move on the courts, than that of Obama or Bill Clinton.

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Biden has also downgraded the role of the American Bar Association, the massive federal legal institution that describes itself as the largest voluntary association of lawyers in the world in rating judicial nominees as qualified or not. This is a move that both the George W. Bush and Trump administrations had already taken. For progressive critics of the rating system, doing away with the approximately monthlong ABA pre-review opens the door for more diverse nominees, because most of the “not qualified” ratings went to women or people of color. But sidelining the ABA arguably deemphasizes backgrounds in the corporate law pipeline and thus also opens the gates for lawyers with backgrounds as civil rights attorneys and public defenders to be fully considered. These candidates sometimes got tangled up in the Obama judicial vetting process, frustrating those pushing for more minority candidates. While the ABA is understandably frustrated at this demotion, it’s a Fed Soc play if ever there was one (again, it was Bush and Trump who first did this, so for Biden, reinstating it would only add time and hurt Democratic nominees).

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In addition to adopting the conservative legal movement’s strategy of naming big pools of jurists quickly, a senior administration official pointedly referenced the fact that many of the nominees are young—some in their 30s and 40s—and that means some will sit on the bench for decades. This was another hallmark move from the Bush era that Obama was not quick to embrace, resulting in a marked age differential between the Democrats nominated and Republican nominees. After Trump’s push to name many young judges, Biden’s team seems to have finally taken that note as well.

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And finally, the Biden judges show hints that the White House may afford less deference to the wishes of home state senators than was traditionally offered, reflecting some frustration with how conservative even Senate Democrats have sometimes been with respect to their favorite nominees. As Brian Fallon of Demand Justice, a progressive legal group, noted in a statement on Tuesday praising this first list, “Ideally all the nominees in this first wave would come from these kinds of underrepresented professional backgrounds. But old habits die hard for some senators who are used to recommending corporate lawyers and prosecutors for federal judgeships.” Fallon concluded that “[w]e know Biden’s stated preference for civil rights lawyers and labor lawyers for district courts is only as good as the buy-in it generates among home-state senators. This means progressives need to double down on pressuring these senators, and that is what we intend to do in the months ahead.” With these nominations, Biden is suggesting that while the administration will respect the choices of Democratic home state senators, the larger imperative for a diverse bench will also inform the nominations process.

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This list of names really did offer big wins to a host of diverse progressive groups that don’t always row together on these issues. By broadening the search to include diverse candidates from a startlingly broad array of legal backgrounds, the White House has satisfied progressive groups in a way that feels on brand with the conservative legal movement. This kind of broad buy-in from diverse outside groups is absolutely necessary for successful confirmations.

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We can certainly have an abstract and theoretical conversation about whether any of these moves—the high speeds, the benching of the ABA, or the quest for much younger nominees—is the ideal method of filling judicial vacancies in the long run. But the message from Biden is that these abstractions matter less than rebalancing the court immediately, while Democrats control the Senate, and that these nominees should not just change the federal bench but change the profession as well. As a senior administration official put it in a call Tuesday morning, the goal is in fact to create “a paradigm shift” not just on the courts, “but in the types of people who can see themselves in the highest echelons” of the profession; that diversity doesn’t just mean a bench that actually looks like America but also a bench that is welcoming to Americans of every stripe. The real lesson the Biden judicial team may have learned, in replicating the actions of the conservative legal movement, is, ironically, that if your party has become toxic to the vast majority of Americans and American lawyers, even prestigious judicial brinksmanship affords you only the narrowest class of nominees. But apply that same strategy to a party that is genuinely inclusive, respectful, and diverse, and the transformation in the legal movement can be ground-shifting.

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