President Biden outpacing Trump, Obama with diverse judicial nominees
WASHINGTON (AP) — For the Biden White House, a quartet of four female judges in Colorado encapsulates its mission when it comes to the federal judiciary.
Charlotte Sweeney is the first openly LGBT woman to serve on the federal bench west of the Mississippi River and has a background in workers' rights. Nina Wang, an immigrant from Taiwan, is the first magistrate judge in the state to be elevated to a federal district seat.
Regina Rodriguez, who is Latina and Asian American, served in a U.S. attorney's office. Veronica Rossman, who came from the former Soviet Union with her family as refugees, is the first former federal public defender to be a judge on the 10th U.S. Circuit Court of Appeals.
With these four women, who were confirmed during the first two years of President Joe Biden's term, there is a breadth of personal and professional diversity that the White House and Democratic senators have promoted in their push to transform the judiciary.
“The nominations send a powerful message to the legal community that this kind of public service is open to a lot of people it wasn’t open to before," Ron Klain, the White House chief of staff, told The Associated Press. "What it says to the public at large is that if you wind up in federal court for whatever reason, you’re much more likely to have a judge who understands where you came from, who you are, and what you’ve been through.”
Klain said that "having a more diverse federal bench in every single respect shows more respect for the American people.”
The White House and Democratic senators are closing out the first two years of Biden's presidency having installed more federal judges than did Biden's two immediate predecessors. The rapid clip reflects a zeal to offset Donald Trump's legacy of stacking the judiciary with young conservatives who often lacked in racial diversity.
So far, 97 lifetime federal judges have been confirmed under Biden, a figure that outpaces both Trump (85) and Barack Obama (62) at this point in their presidencies, according to data from the White House and the office of Senate Majority Leader Chuck Schumer. D-N.Y. The 97 from the Biden presidency includes Supreme Court Justice Ketanji Brown Jackson, that court's first Black woman, as well as 28 circuit court judges and 68 district court judges.
Three out of every four judges tapped by Biden and confirmed by the Senate in the past two years were women. About two-thirds were people of color. The Biden list includes 11 Black women to the powerful circuit courts, more than those installed under all previous presidents combined. There were also 11 former public defenders named to the circuit courts, also more than all of Biden's predecessors combined.
"It’s a story of writing a new chapter for the federal judiciary, with truly extraordinary folks representing the broadest possible types of diversity,” said Paige Herwig, a senior White House counsel.
The White House prioritized judicial nominations from the start, with Biden transition officials soliciting names of potential picks from Democratic senators in late 2020. Sen. Dick Durbin, D-Ill., chairman of the Senate Judiciary Committee, swiftly moved nominees through hearings and Schumer set aside floor time for votes.
Particular focus was placed on nominees for the appellate courts, where the vast majority of federal cases end, and those coming from states with two Democratic senators, who could find easier consensus in a process where there's still significant deference given to home-state officials.
Democrats hope to speed up the tempo of confirmations next year, a goal more easily accomplished by a 51-49 Senate that will give them a slim majority on committees. In the past two years, votes on some of Biden's more contested judicial nominees would deadlock in committee votes, requiring more procedural steps that ate up valuable Senate floor time.
Republicans had also picked up the confirmation pace considerably in Trump’s final two years in office, after GOP senators put in place a rule change — now being used by Democrats — that significantly shortened the time required to process district court nominees.
Schumer said he also hopes to install more judges in appeals courts that shifted rightward under Trump, an effort that the majority leader described as rebalancing those courts.
“Trump loaded up the bench with hard right ‘MAGA’ type judges who are not only out of step with the American people, they were even out of step with the Republican Party,” Schumer said in an interview, using shorthand for Trump's 2016 campaign slogan, “Make America Great Again.”
Schumer added: “We had a mission, it’s not just a predilection. It was a mission to try and redress that balance.”
Despite their limited power to actually derail Biden's judicial picks, some Republicans have fought ferociously against many of them, arguing that their views were out of the legal mainstream despite Democratic arguments otherwise. The precarious 50-50 Senate, where Schumer's plans were often thwarted by ailments or absences, meant several Biden nominees languished for months and were never confirmed before the Senate wrapped up its work this year.
Democrats also say certain judicial nominees, particularly women of color, were unfairly targeted by their GOP critics, leading to tense fights in the Judiciary Committee.
“The Republicans have just got a problem with this. Not all of them, some do,” Durbin said in an interview. “And when you call them out on it ... ‘Why is it consistently women of color that are the object of your wrath?’ and they can’t answer.”
Sen. Josh Hawley, R-Mo., a committee member, said Biden's picks were "very, very left, but unapologetically so." He said Durbin's assertions about Republicans were “absurd.”
“I think the president made a commitment to his base that he was going to put people who shared a very left-wing worldview, who are generally quite critical of, for instance, the criminal justice system, think that it is systemically racist,” Hawley said.
Despite the strengthened Democratic majority, the White House could nonetheless confront some challenges when it comes to nominating and confirming judges over the next two years.
For instance, Biden has made barely a dent in the number of vacancies for district court judges in states that have two Republican senators, confirming just one such person: Stephen Locher, now a judge in the Southern District of Iowa. Senators still adhere to a practice that allows home-state senators virtual veto power over district court picks — a process known colloquially as the “blue slip” — and Democrats are facing an increased push from advocates to discard the tradition, arguing that it only allows for Republican obstructionism.
For instance, Republican Sen. Ron Johnson of Wisconsin earlier this year blocked action on William Pocan, nominated to serve in the Eastern District of Wisconsin, after initially recommending him as part of a bloc of nominees to the White House. Durbin has said he would reconsider the current “blue slip” practice if he sees systematic abuse by senators, especially based on a nominee's race, gender or sexual orientation.
But cases like Pocan's have been rare, Durbin said, and other influential Republicans are affording some level of deference to the Biden White House when it comes to judges.
“I can’t think of a system where Republicans get all their judges and Democrats get none of theirs,” said South Carolina Sen. Lindsey Graham, who will be the top Republican on the Judiciary Committee next year. “That’s not a viable system.”
One matter Biden has not been willing to address: the structure of the Supreme Court.
Any push to change the highest court in the land, even in small ways, has found little footing at the White House, with Biden aides instead highlighting the president’s push to nominate federal judges as the best and most substantial way to secure a Democratic legacy in the judiciary.
As Biden took office in 2021, calls for changes to the Supreme Court were growing louder, after Trump named three new justices that tilted the court’s makeup far to the right.
In June, the 6-3 conservative majority overturned the landmark decision Roe v. Wade, eliminating the constitutional protections for abortion that had existed for nearly 50 years. It did so despite a majority of people in the United States believing abortion should be legal. In the same term, the justices also weakened gun control and curbed the Environmental Protection Agency’s ability to manage climate change.
Polls have shown a dip in approval for the court and respect for it. A Gallup Poll found Americans had the lowest level of trust in the court in 50 years.
Biden has spoken out about the rulings, and argued the court is more of an “advocacy group these days.” But he has not embraced calls to expand the court or even to subject justices to a code of conduct that binds other federal judges. He has not spoken publicly about a study he commissioned on the future of the Supreme Court that finished last year and suggested term limits, mandatory retirement and judicial ethics codes as ways to restore trust in the institution.
White House officials similarly have declined to weigh in on potential changes, even as those advocating for change believe the push will grow stronger this term, as voting rights, clean water, immigration and student loan forgiveness come before the justices.
“I wouldn’t, in any way minimize the progress and the importance of what President Biden is doing on the lower courts,” said Chris Kang of Demand Justice, an advocacy group leading the push to expand the court. “But at the same time, we need to look at the core problem, which is the Supreme Court, and what can be done to fix the issues.”
For now, the White House's focus will remain on the people who sit on the courts.
It's a particularly meaningful achievement for Biden, a former Judiciary Committee chairman himself, and for Klain, who was chief counsel for Biden on that committee and a lawyer who worked on judicial nominations in the Clinton White House.
“With all due respect to my predecessors, I’m sure this is a higher priority for me,” said Klain, who meets weekly with the judicial nominations team. But, referring to Biden, Klain added: “The fact that he makes it such a priority, makes it a big priority for me."