This month, the Senate confirmed its 100th federal judge of the Biden administration, Gina Méndez-Miró, to the District Court of Puerto Rico. For those keeping score, Biden and Senate Democrats have now secured lifetime appointments for 69 district court judges, 30 circuit court judges, and one Supreme Court justice—putting them on pace for at least 200 judicial appointments by the end of Biden’s first term.
They are comfortably outpacing both the Trump and Obama administrations, as Senate Judiciary Chair Dick Durbin boasted in a press release. “Equally as important as the numbers, we are seeing diverse nominees confirmed—in both their professional and demographic backgrounds,” the press release added.
Biden’s judicial appointments mark one of the truly exceptional and durable parts of his presidency, and that final line from Durbin is key. In a 2020 letter sent from White House counsel Dana Remus to the Democratic Senate caucus before Biden was even sworn in, the administration made a commitment to “nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.” That commitment to what’s been called “professional diversity” marked a huge departure from the Obama administration, which deprioritized judicial appointments, but elevated largely corporate lawyers and ex-prosecutors whenever they got around to it.
Biden’s ability to deliver on the professional diversity mandate, however, varies meaningfully from state to state because of the nature of the appointment process. The president relies on senators to recommend district court judges from their home states, and Biden, still a Senate institutionalist, has been loath to reject recommendations even when they don’t fit those aforementioned criteria.
Which is how we’ve gotten to this: At the halfway mark of his presidency, there’s only one Democratic senator to have put forward at least two judges who has totally refused to heed the call to refer professionally diverse candidates for the federal bench: New Jersey Sen. Cory Booker.
According to an analysis from Demand Justice, a progressive legal advocacy organization, around 53 percent of Biden’s judicial nominees have come from public interest, civil rights, and legal aid backgrounds so far—showing that, despite some challenges, Biden’s recommendation has been embraced. But Booker, who hails from a state with two Democratic senators and represents Democrats on the Senate Judiciary Committee, is really dragging down the average.
Judges who come from a corporate law background, or were previously prosecutors, aren’t necessarily bad judges. But as my colleague Mark Joseph Stern put it in 2020, “corporate lawyers spend their careers helping powerful people make more money, gain more power, and fend off challenges from the less fortunate.” Prosecutors, meanwhile, “crank the wheels of our racist and draconian criminal justice system, crushing the lives and liberty of countless defendants, most of them indigent.”
That experience influences how these judges rule on critical issues, as research from think tanks including the People’s Policy Project shows. (For example, judges who worked as prosecutors are more likely to give lengthy sentences to defendants, and corporate lawyers are much more likely to rule against workers in labor disputes.) What’s more, these kinds of judges are completely overrepresented at all levels of the federal judiciary.
As a result, the Biden administration has made a point of prioritizing the elevation of public interest judges—lawyers who were previously public defenders, for example—as part of its broader attempt to rebalance the federal judiciary. This counterbalancing effort is particularly important after years of profound rightward drift in the courts. It’s not just the Supreme Court that has lurched—hard—to the right.
Booker is basically the only Democratic senator to not get in line. Over the past two-plus years, he has nominated prospective judges who hail from corporate law or prosecutorial backgrounds 100 percent of the time.
That’s not for lack of opportunity. Booker has already recommended four separate judges so far: Julien Neals, Zahid Quraishi, Karen Williams, and Michael Farbiarz. All four are either former corporate lawyers or prosecutors. All four also had track records that strayed far from the White House’s guidelines.
Williams, for example, was a partner at a management-side employment firm, who once defended a hospital that was found to have refused to bargain in good faith with its union, and who also defended Atlantic City against charges of gender and racial discrimination and sexual harassment. Quraishi, the first-ever Muslim to be confirmed to the federal bench, was opposed by Muslim American civil rights organizations because of the mystery surrounding his time as a lawyer for U.S. Immigration and Customs Enforcement and work in “detention advisory” while serving in the military during the Iraq War. He recently ruled in favor of the gun lobby against the creation of a New Jersey state office for suing manufacturers over firearms deaths. Neals was a partner at Chasan Lamparello Mallon & Cappuzzo, a firm that represents banks and insurance companies; Farbiarz was a terrorism prosecutor.
Booker isn’t the only New Jersey senator making odd choices in nominating judges. Senior Sen. Bob Menendez has managed only slightly better: one of his four recommendations for judicial appointments was not a corporate lawyer or former prosecutor, but the other three picks were even more fiercely criticized than the appointments of his junior colleague.
“New Jersey is the most disappointing state in terms of judicial nominations, and it is really hard to understand why the two Democratic senators have picked people to be district court judges who are almost uniformly former prosecutors or corporate lawyers, or both,” said Jenny Hunter, a labor lawyer and writer who has written about the issue of Booker’s lousy appointments for Slate.
Booker has long positioned himself as a staunch advocate of criminal justice reform. His short-lived 2019 presidential campaign centered around sweeping revisions of the criminal justice system. How, then, is he now unable to find even one public defender worthy of elevation to the federal bench? It’s not like this is a new issue for him—advocates have been hammering Booker about judicial appointments for years, but nothing seems to have shifted.
“Senator Booker is committed to adding diverse voices from all backgrounds and walks of life to our judiciary,” Maya Krishna-Rogers, a spokesperson for the senator, wrote in an email to Slate. “He will continue working to ensure that our judiciary reflects the voices, backgrounds, and experiences of America.” [Update, Feb. 24, 2023: “Senator Booker has championed nominations of public defenders, civil rights lawyers, and others from diverse professional backgrounds,” Rogers said.]
Indeed, racial diversity is important for the courts, and the majority of Booker’s picks are not white. But the Obama administration championed racial and gender diversity on the bench without professional diversity, a distinction that Remus’ 2020 directive made clear. There’s no reason why Booker couldn’t accommodate the White House’s demands and nominate racially diverse judges with diverse professional backgrounds, as so many of his colleagues have done.
Even more confounding is the fact that Booker is not bound by political calculus. New Jersey is as true-blue as a state can be, with two Democratic senators, a state Democratic trifecta (governor, both chambers of the Legislature), and a state Democratic triplex (governor, secretary of state, attorney general).
Both of the senators from Massachusetts, which had a Republican governor until January, have recommended professionally diverse judges 100 percent of the time; even purple New Mexico has seen both of its senators recommend public interest and civil rights lawyers with 100 percent consistency. Sens. Sherrod Brown of Ohio and Bob Casey of Pennsylvania, despite having had to haggle with their state’s Republican senators over nominations, each managed to nominate at least one professionally diverse nominee.
Getting Booker on board with Biden’s signature accomplishment will be even more important in the coming term. With Republicans taking hold of the House and already expressing a level of truculence that makes any sort of bipartisan legislation unlikely, confirming judges will be one of the few places where there’s meaningful action on Capitol Hill in the coming years.
Another consequential New Jersey–area judicial vacancy is expected to be decided on soon. In early February, Judge Joseph Greenaway, a Clinton appointee, announced that he’d be retiring from the Court of Appeals 3rd Circuit in mid-June. The 3rd Circuit currently sports a 7–6 Republican advantage.
Greenaway’s retirement, coming after 27 years on the federal bench and 13 years as a New Jersey District Court judge, will create a fourth vacancy for Biden on this court. Circuit court judges are not picked in the same way that district court judges are, which means that Booker will not have as much individual sway over Greenaway’s replacement, but it’s still likely the White House and Senate Majority Leader Chuck Schumer will consult with Booker, given that this is his region and he sits on the Senate Judiciary Committee. It’s as good a chance as any for Booker to show that he’s finally willing to go along with the Biden program.
Biden can credibly claim to be in the process of overhauling the entire federal courts system with this new approach, an astonishing accomplishment given Republican obstructionism and the narrowness of margin of a 50–50 senate. Now, with Democrats having expanded that advantage to 51–49, Republicans have less ability to delay the bringing of a nominee to a floor vote.
But there is still plenty of work to do. Trump finished his one term with 234 judges, and as we have seen with the radical conservatism of this Supreme Court, his appointees have already made a lasting impact. The last thing Biden needs is his own party’s senators, especially those in safely blue states like New Jersey, working against him.