Biden is making history under the radar with his judicial appointments — but there's a catch
President Joe Biden has done some outstanding work identifying and seating federal judges. As of Oct. 1, 14 federal circuit and district judges had been confirmed. Remarkably, this month the Senate has confirmed 11 more, with the Senate adding six more just this week. That's the most confirmations in a president's first term since the Nixon administration.
Biden is also making history in who he is nominating and getting confirmed. Public defenders, civil rights defenders, and non-corporate attorneys—many of whom are people of color—are being elevated to the courts in an unprecedented effort to make the judiciary look like America. He's rightfully receiving praise, as is Majority Leader Chuck Schumer for prioritizing these votes. "Leader Schumer is doing everything you could want in terms of using floor time to quickly confirm President Biden's nominees, as well as in recommending professionally diverse nominees for New York-based judgeships," Brian Fallon, executive director of the progressive advocacy group Demand Justice, told Reuters. But that doesn't mean all is well in the Senate when it comes to nominations.
Because this: "Out of [the] 38 district court nominations, 35 have come in states with two Democratic senators. The only exceptions are the three Ohio nominations announced last month." That's because Judiciary Committee Chair Dick Durbin is maintaining the "blue slip" tradition for district-level judges, and Republicans aren't playing along.
The Senate tradition, from days of yore when the Senate was a place where members felt like they had to fulfill their constitutional duty, was for the president to collaborate with senators on nominations from their home states. When the White House and the senators had agreed on a nominee, the senators would indicate they were ready to advance that nominee with a form printed on blue paper, aka a blue slip. The tradition has come and gone in the past few decades, pretty much depending on who is president and who controls the Senate.
Basically, Democrats have respected the tradition and Republicans have thrown it out the window. Under President Barack Obama, Republicans boycotted the process while Democrats were in control, and simply didn't return their blue slips. While Democratic Sen. Pat Leahy was in charge, that worked. He honored the courtesy of blue slips and so didn't bring nominees to committee from those states. That left a lot of vacancies for Trump to fill, and with Trump in the White House and Republicans in control, of course they abandoned the blue slip process for the really important courts—appeals courts—and packed them.
So far, that's what Durbin is doing, honoring blue slips for district judges and ignoring them for appeals court positions and so far that's working okay—they can get a lot of good people in those district court positions. And they have been! But there are a lot of district court vacancies in Republican states, too, that are going to have to be filled eventually and the sooner, the better.
"The White House strategy up to this point has been low-hanging fruit," Jill Dash, vice president of strategic engagement at liberal legal organization the American Constitution Society, told Sam Mellins at Balls and Strikes, a newsletter produced by Demand Justice. "There's a lot of work to do on judicial nominations before we get to any pitched battles."
The White House and Senate can point to what they've accomplished thus far and be rightfully proud of it. It's a fantastic achievement, particularly because of the backgrounds of the judges that are being seated. The problem for the country, though, is that they're only covering half the states. The rest of the states, even the red ones, deserve to have the same diversity on their courts as the blue states.
Faudlin Pierre, a Miami-based civil rights attorney who practices in federal court, told Mellins how important it is to have a judge who has experience in public defense or civil rights. "It matters when you're in practice, because they see the world a different way," he said. "When it's a close call, judges, like any other human being, go with their biases. They go with their life experiences. That's why we need to have a more diverse judiciary."
That's better for the residents of those states, but it's also better overall to help dilute the power of conservative-packed higher courts. The cases that reach the appeals courts come from those district courts, after all. "You need good intellectually competent judges to set the stage for the Eleventh Circuit," Pierre said, referring to the conservative appeals court covering Florida, Georgia, and Alabama, where he works. "You need people at the bottom to say, 'Here's the roadmap and here's the reasoning why you should affirm [the district court's decision].'" Seven of the 13 appeals courts have majority Republican appointees now, after the Trump/McConnell court-packing scheme.
The Biden administration has also been trying to find nominees that Republicans will agree to, according to Dash. That means the administration is "not putting the same kinds of nominees in red or purple states as in blue states." Again, back to Florida and Pierre.
Recent developments in Florida, which is represented in the Senate by two Republicans, demonstrate how Republican obstruction can warp the nomination process. A commission led by Florida's congressional Democrats drew up a list of potential nominees for two open district court judgeships in the state; a separate commission led by Republican Senator Marco Rubio drew up its own list in opposition. There were two common names between the lists: Detra Shaw-Wilder, a corporate lawyer, and David Liebowitz, a former federal prosecutor whose billionaire uncle is a major Rubio donor—hardly the stuff of progressive dreams.
Right now those nominees from Florida are at an impasse, and Pierre is frustrated. "There's been nothing. And I'm just like, 'Hey, we're important too,'" he said. "I don't think that the administration appreciates the sense of urgency that we on the ground feel. […] This has to be a multi-front attack," Pierre said. "We need people at the front lines who can intellectually combat the nonsense that comes from the other end."
That means ditching blue slips and getting as many good, diverse judges in all the vacancies as possible, as soon as possible. There are no guarantees about Biden having a Senate majority to confirm his nominees come November 2022.
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