By this time in his presidency, Donald Trump had already unveiled some early judicial nominees, including picking Neil Gorsuch for the Supreme Court seat that had been left open after nearly a year of GOP obstruction. Barack Obama—roundly criticized for moving far too slowly in rolling out judicial nominees—announced his first federal court nominee on March 17, 2009. Which makes Joe Biden feel late to the party. A first slate of Biden judicial picks—promised for last week—has not yet materialized. Fretting about this might feel premature, but court watchers, mindful of the fact that Trump seated 234 judges inside four years, including three to the Supreme Court, are getting antsy at the prospect of living under the thumb of a Trump judiciary forever. In his single term in office, Trump managed to replace more than 25 percent of the federal bench overall and more than 30 percent of the circuit court bench, where the vast majority of cases are resolved. Democrats currently hold a one-vote majority in the Senate. As Mark Joseph Stern and I have argued, no matter what legislation Biden manages to pass, or what administrative goals he sets, the courts will be the ultimate arbiters of much of it. In fact, it’s already happening. If Democrats lose the Senate in 2022, that means the sell-by date for judicial reconfiguration is terrifyingly near.
Progressives who didn’t quite apprehend the immensity of the conservative legal project that bore fruit after the 2016 election seem to truly appreciate it now. The Trumpified bench will decide the future of voting, LGBTQ rights, and environmental and worker protections, and probably not in a way favorable to any of it. Which is why liberals want action, swift, certain, and irreversible, and why the calls for action, some of them hair-triggery, are starting to break through the news cycle. For example, professor Paul Campos, writing last week in the New York Times, urged Justice Stephen Breyer, who is 82, to retire “immediately, effective upon the confirmation of his successor.” Breyer will likely retire soon, but as Noah Feldman urged here, politicizing the question is a sure way to slow Breyer’s retirement roll. Sen. Sheldon Whitehouse, a Rhode Island Democrat, wrote a letter to Attorney General Merrick Garland last week requesting more scrutiny of the FBI’s “fake investigation” into allegations against Brett Kavanaugh at the time of his confirmation, raising hopes that Kavanaugh might be removed. My sense is that the chances of a sitting justice being removed are far lower than we’d prefer and that energy directed at court expansion as opposed to contraction is smarter strategy. Andrew Cohen, writing in early March, called for “100 Biden judges before the end of 2021”and noted that “we’re now 45 days into the Biden administration and it’s time for action.” Now this one, I understand perfectly.
And yet I am skeptical that it can happen that quickly. And in fact, the effort to emulate Mitch McConnell’s mindless, grinding four-year judge-a-thon is neither possible on the left nor desirable. And that isn’t because Biden is lazy. To start, Biden starts with fewer vacancies to fill than most modern presidents. As Russell Wheeler at Brookings notes, while Biden’s appointments can quickly bolster the number of Democratic appointees on the district courts, rebalancing the appeals court and eventually the Supreme Court will be far trickier. McConnell and the Federalist Society get immense credit for miraculously seating record numbers of judges, but if you are willing to seat bloggers who have never entered a courtroom, and you have the votes to confirm all of them, it’s not the heavy lift it appears.
Biden’s judicial picks face the headwinds that come with a pipeline problem, a money problem, and a partisan asymmetry problem. Recall that there were Senate Democrats confirming Trump judges right down to the bitter end. Biden nominees haven’t been raised in labs and polished like gems by Leonard Leo. Right now, they are everywhere and nowhere, and everything about the judge-picking process takes time when you are trying to pick judges, particularly diverse judges. Those who acknowledge that Trump successfully seated predominantly young, white (85 percent), male (75 percent) judges culled largely from prosecutors’ offices and Big Law are understandably frustrated. But the White House, working alongside Senate Democrats, decided to cast a wide net for candidates with diverse backgrounds and a broader pool of legal experience than we have seen in prior judicial searches. Biden’s White House counsel, Dana Remus, sent a letter to senators back in December requesting a racially and ethnically diverse pool and a search that extended beyond the usual Ivy League and Big Law pipeline. Moreover, the Biden White House has asked for nominees that come from groups who have been “historically underrepresented” in the judicial branch, “including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.” This is a response to the current situation, in which there is not a single federal appeals court judge who spent their career at a nonprofit civil rights organization, according to the Center for American Progress.
That is a massive course correction, even from the Obama era, in which judicial selections showed racial and gender diversity but a narrower professional bandwidth. On the one hand, there are thousands of good candidates that surely meet these broad new criteria. And the Biden administration has announced it will bypass the long-standing judicial vetting that had been performed by the American Bar Association, which was deemed too liberal by conservative groups and too tethered to corporate law firms by liberals. (The Trump judicial process had sidelined the ABA rankings already.) On the other hand, nobody has been grooming this much wider pool of candidates to become an Article III judge since their infancy. And progressive judicial groups that haven’t always worked together are trying to streamline that pipeline and coordinate efforts.
In a sense then, progressives who have been fighting for court reform, court ethics reform, and a representative judicial branch have finally fished their wish: Progressive voters who haven’t typically prioritized the role of the judiciary have roared into the court reform arena in 2021, informed and engaged and supportive of structural reforms they hadn’t seriously contemplated and eager for younger, more liberal judges. Biden’s commission to study Supreme Court reform may or may not come back with groundbreaking recommendations, but this is an issue on which voters want to see speedy action. So there is an unusually high interest in action—but there are systems problems that cannot be corrected inside a single week. Unlike the Trump administration, Democrats don’t have a staggering number of vacancies to fill, don’t have a Federalist Society–equivalent primed to do 100 percent of the vetting and grooming of judicial candidates, and don’t have a Don McGahn in the White House who is solely focused on ramming through judges. Also, Democrats are facing the relative disadvantage that rebalancing the bench is simply a priority but not the priority (they are also passing transformative legislation). Which means that unlike the juggernaut that saw McConnell confirming judges even after Trump had lost the election, Democrats are trying to both govern and also reform the judiciary—and also reform the face of the judiciary by culling interesting and unexpected nominees from diverse backgrounds, which perhaps simply cannot be accomplished in the first 50 days. You can either have a well-oiled judge manufacturing program or something clunkier that will hopefully produce judges who are ultimately less, er, oily.
Meanwhile, the judge-making machine that the GOP has perfected over the past decades means that their one other superpower lies in blocking Democratic nominees, particularly those with diverse and interesting backgrounds. This is the one thing Senate Republicans are surprisingly adept at: throwing sand into the judicial gears. Sen. Josh Hawley, the Missouri Republican who amplified claims that the 2020 election had been stolen, has suggested that Biden evince bipartisanship by elevating Trump appointees to the circuit courts rather than placing his own nominees there. Florida’s two GOP senators, Rick Scott and Marco Rubio, have already announced they refuse to participate in Florida’s long-standing, bipartisan federal judicial nominations system. We’re seeing that obstruction previewed in the well-funded opposition campaigns to Justice Department nominees like Vanita Gupta and Kristen Clarke, rooted in staggeringly racist smears about their records and their views. Prepare for death by old tweets. Prepare for some Democrats in the Senate to be offended by those old tweets. Holding up nominations with false claims and extortionate dark money ad buys is one of the few skillsets the conservative dark money establishment can fall back on in an era of ranting about cancel culture and Dr. Seuss.
In a sense then, yes, it is way past time for judicial action. But progressive groups are seeking to break the model of judicial selections to do something radical with Biden’s judiciary, and that will take some time. Conservative groups that have given up on governance altogether—aside from controlling the courts—will prove uniquely obstructive to this effort. Senate Democrats may not be willing to greenlight every nomination as their counterparts did. It’s not a terribly equitable or satisfying answer when the need to reform absolutely everything right now is desperate, but the current judicial situation mostly just proves that long-term structural court reform may be the only enduring solution to what is otherwise an unending chess game with built-in systemic advantages to the other side.
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