As 2021 draws to a close, President Joe Biden has good reason to be frustrated. His legislative agenda is stymied in the Senate. His executive authority is under assault from Donald Trump’s judges. His administration was blindsided, again, by a spiraling COVID surge, this time with omicron. But there is one front on which Biden has a near-perfect score: judicial nominations. Over the past year, the White House has put forth slate after slate of diverse, well-qualified, progressive nominees—and the Senate has swiftly confirmed them. Biden’s breakneck pace, combined with his choice of nontraditional judges, has shattered too many records to count. No, the president has not loosened Donald Trump’s stranglehold on the Supreme Court. But his transformation of the lower courts will still have a profound impact on American law for decades to come.
There are two defining features of Biden’s push to remake the federal judiciary: speed and diversity. Let’s start with speed. In his first year, just 19 of Trump’s judicial nominees had received Senate confirmation. For President Barack Obama, that number was 13; for Presidents George W. Bush and Bill Clinton, it was 28. Biden, by contrast, has seen 40 of his judges confirmed already—the most since President Ronald Reagan. Eleven of Biden’s judges sit on the powerful U.S. Court of Appeals, where most federal cases are resolved. (For comparison, Obama placed just three judges on the Court of Appeals in his first year.)
Now turn to the other extraordinary aspect of Biden’s judicial nominees: their unprecedented demographic and professional diversity. In a comprehensive report, Alliance for Justice has highlighted the many firsts among this crop of judges: the first openly lesbian judge on the Court of Appeals (Beth Robinson); the first Korean American to sit on the Court of Appeals (Lucy Koh); the first Muslim federal judge (Zahid Quraishi); the first Black judge on the U.S. Court of Appeals for the Federal Circuit (Tiffany Cunningham); the first woman of color to serve on the U.S. District Court in Maryland (Lydia Griggsby); the first Native American federal judge in Washington state (Lauren J. King)—the list goes on. According to Alliance for Justice, nearly 75 percent of Biden’s judicial nominees are women, and nearly 65 percent are people of color. For comparison, only 24 percent of Trump’s judicial nominees were women, and just 16 percent were people of color.
Biden, then, is continuing one of President Jimmy Carter’s greatest legacies: the diversification of the federal judiciary. Carter revolutionized judicial nominations by consciously seeking out women and nonwhite candidates, convinced that the courts should look more like the country they served. While Clinton and Obama made a partial dent in the judiciary’s homogeneity, Trump zagged in the other direction, favoring straight white men. To combat this “whitewashing” of the judiciary, Biden and his advisers have ventured beyond the small circle of legal elites, seeking out lawyers who are too often overlooked by the usual gatekeepers.
This approach has led the White House to nominate candidates with a breadth of experience that goes far beyond what usually propels someone into the judiciary. For too long, Democratic and Republican presidents (including Obama) have elevated a disproportionate number of prosecutors and corporate lawyers to the bench. This bias skews and narrows courts’ perspectives; it deprives them of “a collaboration of minds with different voices, different perspectives, different experiences working together to solve problems,” as one judge noted. Or, to put it more cynically, it prejudices courts toward powerful corporations and prosecutors.
Under pressure from court reform groups like Demand Justice, Biden bucked this custom. He has nominated 21 public defenders, 14 civil rights attorneys, 10 plaintiff-side lawyers, three former legal aid lawyers, three consumer protection lawyers, and one labor lawyer. Already, he has doubled the number of former public defenders on the U.S. Court of Appeals. Several of his nominees previously fought for voting rights (Myrna Pérez and Dale Ho), marriage equality (Beth Robinson), and death row inmates (Holly Thomas). Their commitment to these controversial causes was not a deal-breaker for the White House; it was a selling point. At long last, courageous attorneys who stick their necks out to promote progressive values are being rewarded rather than punished by the Democratic establishment.
There is one exception: None of Biden’s nominees focused on reproductive rights. It’s a glaring omission, especially since champions of so many other contentious battles like LGBTQ equality are represented. There is not a single nominee who specializes in protecting abortion access—no one like, say, Brigitte Amiri, the fearless ACLU attorney who thwarted the Trump administration’s efforts to stop undocumented minors from terminating unwanted pregnancies. This exclusion is made all the more conspicuous by the Supreme Court’s aggressive assault on Roe v. Wade, which could culminate in Roe’s reversal this summer.
It could have downstream consequences. Judicial nominations help guide ambitious attorneys’ career paths. When young liberal lawyers see voting rights attorneys getting nominated, they may decide to pursue their passion for democracy, conscious of the possibility that it could qualify them for a judgeship down the road. On the other hand, if young lawyers see zero reproductive rights lawyers getting nominated, they are going to conclude that abortion advocacy is disqualifying for judicial nominees. They may avoid taking on reproductive rights cases to avoid getting a black mark on their record. The cumulative effect of this phenomenon is that a generation of liberal lawyers with judicial ambitions will avoid doing reproductive rights litigation. There will be fewer lawyers to defend abortion and fewer judges with professional experience safeguarding access to clinics.
Biden’s wishy-washy, tentative attitude toward abortion may have led him to shy away from these nominees. Or maybe the absence of abortion advocates reflects practical realities rather than philosophical hang-ups. That practical consideration is one of time: Like the Senate itself, the Senate Judiciary Committee, which is responsible for appraising the nominees, is evenly split. If every Republican on the committee votes against a nominee, Majority Leader Chuck Schumer must file a discharge petition to circumnavigate them and secure a floor vote. That process requires another vote of the full Senate, burning up valuable floor time. Abortion supporters are almost certain to draw unified opposition from Republicans, compelling the use of this elaborate maneuver. (Senate Democrats have already had to use it for several nominees, including union lawyer Jennifer Sung, who once called Brett Kavanaugh “an intellectually and morally bankrupt ideologue.”) Perhaps Biden will put forth reproductive rights lawyers after he has passed more of his legislative agenda, when Schumer can afford to spend hours wrangling nominees out of committee.
So far, most of Biden’s nominees come from states with at least one Democratic senator, which eases the way to confirmation. But an increasing number of vacancies are opening up in states with two Republican senators, and these seats may prove harder to fill. Historically, the Senate Judiciary Committee sends “blue slips” to a nominee’s home-state senators soliciting their approval; for years, the committee killed nominations if senators did not return these slips. Under Obama, Republicans withheld blue slips to hold vacancies open for years. When Republican Sens. Lindsey Graham and Chuck Grassley chaired the committee, however, they abandoned this practice, allowing the confirmation of Trump’s appeals court nominees from blue states, even over the objection of both Democratic senators.
The question is what will Democrats do now that it is their turn again. In the past, Dick Durbin—a Democrat and the current chair of the Senate Judiciary Committee—has indicated that he would not tolerate a blue slip blockade from Republicans. And on Wednesday, a committee aide confirmed to me that Durbin “does not plan to defer to Republicans who don’t return blue slips on circuit seats.” Moreover, while Republicans preserved blue slips for district court nominees, Durbin won’t abide by that rule “if he feels it will be abused,” the aide said.
A burning question looms over all this progress: Will Biden’s judges really matter if the Supreme Court retains its 6–3 conservative supermajority? The answer is yes, with a caveat. No doubt, SCOTUS will continue to implement the Republican Party’s agenda from the bench. It will hobble Biden’s presidency however it can and overturn liberal precedent at an eye-popping rate. But desegregating the judiciary, flooding it with talented minds from marginalized communities, has its own inherent value. It brings fresh perspectives and insights, even if they must be expressed in dissent, that bolster the court’s legitimacy in an increasingly diverse country. And it builds up the backbench for future Supreme Court vacancies, developing a kind of progressive jurisprudence in exile. On top of all that, most federal cases are decided by the Court of Appeals. Biden’s judges are certain to have the final word on major disputes from time to time.
The road to rebuilding a sane federal judiciary runs long. It may take decades. But Biden, Schumer, and Durbin have momentum on their side. The most important takeaway from this past year of judicial confirmations may be this: After years of conciliation and unilateral disarmament, Democrats are finally playing hardball with the courts.
