Biden’s fight to de-Trumpify the Supreme Court and federal courts, explained

Joe Biden probably knows more about picking judges than any new president in American history.

A longtime member and former chair of the Senate Judiciary Committee, Biden oversaw hundreds of judicial confirmations. He chaired the 1987 hearing that successfully convinced the Senate to reject Judge Robert Bork’s nomination to the Supreme Court; then presided over a far less successful hearing that preceded Justice Clarence Thomas’s confirmation in 1991.

As president, he’s approached judicial selection with a seriousness of purpose that hasn’t been seen in a Democratic White House since at least the Carter administration. With eight Biden judges currently sitting on the federal bench, including three court of appeals judges, Biden’s appointed more judges at this point in his presidency than any newly elected president since Richard Nixon.

Biden’s nominated 22 more, and he has the potential to shape much of the federal bench very rapidly. Currently, there are 82 vacancies throughout the federal judiciary, nearly 10 percent of the bench, although most of these vacancies are on relatively low-ranking district courts.

When I speak with liberal advocates jaded by years of failed efforts to get Democrats — including the Obama White House — to take judicial appointments as seriously as Republicans, their attitudes toward Biden range from measured enthusiasm to something approaching ecstasy. Though Biden received some criticism from his left for nominating two management-side employment lawyers to vacant seats in New Jersey, nearly all of the advocates that I spoke with were thrilled with Biden’s overall record on judicial nominations.

Former Wisconsin Sen. Russ Feingold, who now leads the liberal American Constitution Society, told me that Biden’s judicial confirmation efforts are off to a “tremendous start.” Daniel Goldberg of the Alliance for Justice, an organization that spent the Trump years producing research memos warning about the former president’s nominees, summarized his opinion of Biden’s approach to judges in a single word: “outstanding.”

And yet, while liberal veterans of the judicial wars now have the president many of them have hoped for their entire career, Biden may have arrived five years too late. The sad reality for the new president is that he’s likely to need every ounce of political skill and institutional knowledge that he gained after decades of confirming judges to pull the judiciary back from where his predecessor left it. And he may still fail to do so.

Biden had been president less than a week when the first Trump judge handed down a decision sabotaging one of his policies. The judge was Drew Tipton, a federal judge in Texas with only a few months of experience on the bench, and the sabotaged policy was a 100-day pause on deportations that the administration announced on Biden’s first day in office.

Tipton’s opinion explaining why he blocked the deportation moratorium flouted decades of precedent. And Tipton has hardly been the only judge to behave this way during Biden’s still-young presidency.

J. Campbell Barker, another Trump judge in Texas, handed down a decision in February that, if taken seriously, could strip the federal government of its power to regulate the national housing market. In July, Judge Andrew Hanen, a judge whose nativist inclinations are so widely known that anti-immigrant plaintiffs seek out his courtroom to ensure they will receive a sympathetic hearing, struck down the Deferred Action for Childhood Arrivals (DACA) program that allows hundreds of thousands of immigrants to remain in the country.

The Supreme Court spent the first days of summer busting unions, protecting conservative political donors, and gutting the Voting Rights Act. The Court also spent the last couple of years laying the groundwork to strip the Biden administration of much of its power to regulate the workplace, expand access to health care, and protect the environment.

President Biden, in other words, began his presidency deep in a hole. He faces a 6-3 conservative Supreme Court, and dozens of Trump’s lower court judges eager to make a name for themselves (and potentially score a promotion in a future Republican administration) by undercutting Democratic policies. He is the heir to an Obama administration that, at least early on, treated judicial confirmations as an annoying distraction from other business, and to a Trump administration that treated the judiciary as its most lasting legacy.

And that legacy could include disrupting Biden’s entire presidency.

The Obama White House dropped the ball

President Barack Obama’s judicial nominees faced several structural obstacles that do not hinder Biden’s. When Obama took office, the filibuster enabled Republicans to block any nominee who didn’t have supermajority support in the Senate, and it enabled the GOP to slow the Senate’s business to an excruciating crawl even when Democrats did have the 60 votes necessary to break a filibuster.

The Senate changed these rules to allow judges to be confirmed by a simple majority, and to limit the minority party’s power to delay most confirmation votes.

Then-Senate Judiciary Chair Patrick Leahy (D-VT) — like so many other Democrats who cling to their own idiosyncratic notions of how institutions should function at the expense of governance — insisted on giving Republican senators veto power over anyone nominated to a federal judicial vacancy in their state by taking an unusually expansive view of a Senate tradition known as the “blue slip.” The current chair, Sen. Dick Durbin (D-IL), will not allow Republicans to veto at least some of Biden’s nominees, especially his nominees to powerful appellate courts.

Obama also had to fill a Supreme Court vacancy in his first year, which made it difficult for the White House or the Senate to pay as much attention to lower court nominees.

But even if Obama was dealt a more difficult hand on judicial confirmations than Biden, he played that hand terribly.

At least in the first year of his presidency, Obama staffed his White House with senior officials who either treated the process of shepherding judges to confirmation as a chore, or who lacked experience with judicial politics.

Rahm Emanuel, Obama’s first chief of staff, reportedly told a room full of activists that he didn’t “give a fuck about judicial appointments.” Greg Craig, Obama’s first White House counsel, was a former State Department official who showed more interest in Obama’s worthy, but failed, effort to close the prison at Guantanamo Bay than in choosing judges.

Obama, meanwhile, prevailed on Craig to hire Cassandra Butts, a personal friend and law school classmate of Obama’s with a distinguished career on Capitol Hill and in left-of-center politics. (Disclosure: In 2015, I interned on the Center for American Progress’s domestic policy team, which Butts led.) Craig made her his deputy overseeing judicial nominations.

Yet, while Butts was undoubtedly qualified to work in the White House, she had limited experience working in judicial politics. And her legislative background also fit in poorly in a White House counsel’s office that placed credentials such as a Supreme Court clerkship or practice at a white-shoe law firm on a pedestal. That appears to have diminished her influence.

The result of this mix of inexperience and indifference is that the early Obama White House was often slow to nominate judges. And it stumbled into traps that aides more familiar with judicial politics might have avoided.

Here’s an example: About two months into Obama’s presidency, the White House announced that it would nominate Indiana federal trial Judge David Hamilton to a seat on the United States Court of Appeals for the Seventh Circuit. Hamilton was Obama’s first judicial nominee, and the president intended to use Hamilton’s nomination to extend an olive branch to Republicans.

The New York Times described Hamilton as someone “who is said by lawyers to represent some of his state’s traditionally moderate strain.” And Hamilton enjoyed the support of his home-state Republican Sen. Richard Lugar.

But, if the Obama White House had paid more attention to Hamilton’s record as a federal district judge, they would have known that he was not the sort of judge who could be sold to Republicans as a peace offering.

Among other things, Hamilton blocked an Indiana law that effectively required most abortion patients to make two trips to a clinic before they could have an abortion. And he handed down a pair of religious freedom decisions that seemed designed to enrage Republican culture warriors. The first held that a state legislature could not open its session with a prayer to “Jesus,” because such a prayer preferences Christianity over other faiths. The second opinion explained that a prayer to “Allah” could be a permissible non-sectarian prayer, because “Allah” is merely the Arabic word for “God.”

The point is not that Hamilton was wrong in any of these decisions, or that he should not have been confirmed to the Seventh Circuit. Hamilton is an excellent judge, and the rule of law depends on judges who are willing to hand down decisions that may make them unpopular. But a White House staffed with veterans of past judicial confirmation fights would have understood that a judge with Hamilton’s record on abortion and religion would trigger significant opposition from Republicans.

And trigger it he did. Republicans filibustered his nomination. When Hamilton was eventually confirmed, every Republican senator except for Lugar opposed him.

Though Obama’s judicial confirmations effort grew more sophisticated later in his presidency, it never fully recovered from its early missteps. In eight years as president, Obama appointed only 55 federal appellate judges — just one more than Trump appointed in only four years in the White House.

Biden learned from Obama’s mistakes

The charitable interpretation of the Obama White House’s early missteps is that it had a lot on its plate. It was trying to dig the nation out of a catastrophic recession, and didn’t want to get bogged down in fights over judges. As Feingold told me, judicial nominations “got put on the back burner” during much of Obama’s presidency.

But President Biden faces at least as many challenges as Obama did during his first term in office. Biden also is trying to revive a stalled economy, and he’s doing so as the world seeks to curb what is hopefully a once-in-a-century pandemic. Plus, Biden faces an opposition party that increasingly views Democrats as illegitimate. Republicans worked hard to undermine Obama’s policy agenda, but even the Obama-era Republican Party didn’t try to sabotage an investigation into a violent attempt to overthrow the United States government and install Donald Trump as president.

And yet, with so many crises to confront at once, Biden has still confirmed more judges this early in his presidency than any other chief executive in the past half-century. He’s hired senior staff who understand judicial politics and take confirming judges very seriously. It is “clear that the White House counsel’s office and the Oval Office consider this a high priority,” said Feingold.

“Having [White House Chief of Staff] Ron Klain in the White House has been about the best thing we could have hoped for when it comes to judicial nominations,” according to Molly Coleman of the People’s Parity Project, a group that organizes law students and young lawyers to “unrig the legal system and build a justice system that values people over profits.”

Klain oversaw President Bill Clinton’s judicial nominations efforts, including the confirmation of the late Justice Ruth Bader Ginsburg. Coleman told me that, when she took a course from Klain as a law student, it was clear that the future chief of staff “took pride” in the time he spent ushering Clinton’s nominees onto the bench.

He’s a far cry, in other words, from Rahm Emanuel. Klain has been one of the White House’s biggest cheerleaders for judicial confirmations.

White House counsel Dana Remus reached out to Democratic senators a month before Biden was president to enlist their local expertise in the often-arduous process of identifying judicial nominees from individual states. And the Biden White House also hired Paige Herwig, a former Senate Judiciary Committee staffer who also worked for the liberal judicial group Demand Justice, to oversee judicial nominations.

This is a team that knows what it is doing in picking and confirming judges.

Why liberal groups are so pleased with Biden’s judges

When I spoke to liberal legal groups in 2020, I consistently heard that they had two requests from a Democratic White House regarding judges. They wanted nominees who were demographically diverse, but they also wanted nominees who had a diversity of experience working to benefit the least fortunate. A frequent complaint about President Obama was that he nominated too many partners at corporate law firms, and that he nominated too many prosecutors and not enough civil rights lawyers or public defenders.

Biden’s transition team signaled that he would meet these requests a month before he took office. In a December 2020 letter to Democratic senators, Remus told those lawmakers that “with respect to U.S. District Court positions, we are particularly focused on 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.”

Thus far, the Biden White House has delivered on its goal of appointing judges from diverse backgrounds. One of Biden’s first judicial appointments was Judge Zahid Quraishi, the first Muslim American to serve on the federal bench. In all of American history, only 11 Black women have served on a United States Court of Appeals. Three of them — Judges Ketanji Brown Jackson, Candace Jackson-Akiwumi, and Tiffany Cunningham — were appointed by Biden in the last six months.

Both Judges Jackson and Jackson-Akiwumi, moreover, are former public defenders, as is Eunice Lee, a Biden nominee to the Second Circuit. Myrna Pérez, another Biden nominee to that court, directs the voting rights project at the Brennan Center for Justice. Jennifer Sung, a Biden nominee to the Ninth Circuit, is a former union organizer and union-side litigator.

“People who in the past couldn’t even contemplate being judges” are now being nominated, Goldberg from the Alliance for Justice told me. In many cases (though not in every case), Biden is passing over the sort of high-dollar lawyers who are most likely to be politically connected in favor of more service-focused attorneys.

At least at the appellate level, moreover, the typical Biden nominee is someone who chose to spend much of their pre-judicial career in public service, despite having the sort of credentials that could have set them up for a much more lucrative career. Jackson, Jackson-Akiwumi, Lee, Pérez, and Sung all clerked for a federal appellate judge — an elite credential that is normally reserved for the most high-performing young lawyers — and Jackson also clerked for Supreme Court Justice Stephen Breyer.

And yet, for all of his early successes, it remains to be seen whether Biden can keep up the pace.

Biden has mostly nominated people to the easiest judicial vacancies to fill

One other thing that unites Biden’s nominees is that they largely hail from blue states with two Democratic senators. These are the easiest vacancies for a Democratic president to fill because allied lawmakers are more likely to cooperate with Biden in identifying potential nominees. But it’s also because of the legacy of an old patronage system that still gives senators outsized influence over nominees from their state.

Before the Jimmy Carter administration, the White House typically gave enormous deference to home-state senators when choosing federal judges — indeed, the Senate Judiciary Committee would often refuse to hold a hearing on a nominee if the president tried to appoint someone other than the choice of the nominee’s home-state senator. President Carter weakened senators’ roles by setting up a now-defunct merit selection commission to select court of appeals judges, but senators continue to play an outsized role in choosing trial judges even to this day.

The primary mechanism for maintaining this patronage system is the “blue slip,” named after the blue pieces of paper home-state senators use to indicate whether they approve of a nominee. Under Sen. Leahy, home-state senators were allowed to veto any nominee to a federal judgeship in their state. But the committee’s current practice is to only allow senators to veto district judges, the lowest rank of federal judges who receive lifetime appointments.

But even a limited blue slip rule presents problems for Biden. It’s hard to imagine that senators like Josh Hawley (R-MO), who threw a fist up in solidarity with the protesters that later attacked the US Capitol in a failed effort to overturn Biden’s election, would consent to anyone nominated by Biden. And even many Republican senators who accept the results of the 2020 election are likely to prefer leaving an open judicial seat vacant to filling it with a Biden nominee.

Currently, there are vacant seats in Texas, Ohio, Indiana, Wisconsin, Oklahoma, Alabama, and Florida, all of which have at least one Republican senator. Ultimately, it will be up to Senate Judiciary Chair Durbin to decide whether Republican senators should be allowed to veto nominees when they have no intention of letting Biden confirm anyone to a vacant seat.

A potentially even more difficult political problem for Biden is what he should do about Democratic senators who drag their feet when the White House seeks their input on potential nominees in their state. Or if they offer recommendations that do not comport with Biden’s values. Biden could simply go around such senators, but doing so carries its own risks. Especially in a Senate where Democrats enjoy the narrowest possible majority, there are obvious reasons why the White House may be reluctant to anger a Democratic senator.

There’s also a final, more pragmatic reason why the White House may prefer to work with home-state senators if they can. Senators are more likely to be familiar with the lawyers in their state than the president and his aides, and thus may be able to suggest outstanding candidates who would otherwise be overlooked.

There are potential workarounds if a senator refuses to provide such input — Zahra Mion with the NAACP Legal Defense and Education Fund told me that “in Florida we’ve already seen some state legislative members set up commissions” to identify potential nominees, for example. But, because senators have historically advised presidents on judicial nominations, a senator is more likely to have already set up such a commission and established the relationships with their state bar that would allow them to provide good advice.

What if Biden does everything right, and it isn’t enough?

The elephant looming over Biden’s effort to shape the bench is that there’s always a degree of randomness to judicial selection. Biden — and liberal democracy more broadly — would stand on much stronger footing if Supreme Court Justice Ginsburg had lived just a few months longer, allowing Biden to choose her successor. And Justice Stephen Breyer’s decision to hold onto his seat, during what could be a very brief window in which Democrats control the Senate, could easily end in disaster for both the Democratic Party and democracy itself.

“The conventional wisdom,” Coleman, with the People’s Parity Project, told me, “is that we don’t have the full four years to get nominees confirmed. We have until the midterms.” And even that might be optimistic. If Republicans regain control of the Senate — either through an election or through the death or departure of a Democratic senator — GOP Leader Mitch McConnell is likely to impose the same near-total blockade on Biden’s Supreme Court and appellate nominees that he imposed on Obama when McConnell had the power to do so.

McConnell has already suggested that no Biden Supreme Court nominee will be confirmed if Republicans take control of the Senate.

The other potential catastrophe looming over the Biden White House is what happens if the Supreme Court goes rogue, invalidating Biden’s policies on the flimsiest legal arguments, or even permitting Republican state lawmakers to rig elections outright? Biden’s signaled that he’s not willing to add seats to the Supreme Court to ward off this problem, and it’s unlikely that Biden could get such a bill through Congress if he changes his mind. So his influence over the judiciary will ultimately be shaped by which judges leave the bench during his time in office.

Biden will need more than just a lifetime of experience confirming judges if he hopes to reverse Trump’s impact on the judiciary. He’s also going to need a lot of luck.

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