But, he added: “I think that, once we have the lead in the Chief Justice, we should potentially turn to the judges, because some of those vacancies are pending.”
At the heart of Biden’s efforts to put his mark on the DOJ is his choice of attorney general, DC District Judge Merrick Garland. Garland is expected to be heard soon, although it is unclear how quickly.
The new chairman of the Judiciary Committee, Senator Dick Durbin (D-Ill.), Said he is planning to negotiate with Republicans to see if the usual 28-day wait between the official nomination and the hearing can be waived for Garland.
“As soon as we have the paperwork and a … decent break occurs, we want to present it to the committee,” said Durbin. “We need an attorney general in this country and the sooner the better.”
A White House spokesman declined to comment on the delay in sending Garland’s formal referral paperwork, but a Judiciary Committee spokesman confirmed on Thursday morning that the panel now has Garland’s questionnaire and other materials in hands. Biden did not announce his choice of veteran lawyer and failed to nominate Obama for the Supreme Court until Jan. 6, after most of the other cabinet choices.
Biden appeared to have waited to announce his appointment as attorney general and other choices for the DOJ’s top seats until the results of the second round in Georgia indicated that Democrats would gain control of the Senate.
Adding to scheduling complications: Judiciary Committee members and leadership are in limbo due to an impasse between Senate majority leader Chuck Schumer and minority leader Mitch McConnell over a Senate rule package. The main dispute over the package was resolved on Monday, but the language still needs to be finalized, leaving the committees still in a state of uncertainty.
But even with the committee in place, doubts remain as to whether its members should work through the entire Biden DOJ candidate list, or confirm only high-ranking officials before shifting the focus to filling empty seats in district courts. and circuit. Democrats are deeply frustrated by the Republicans’ ability to supply the federal bench with conservative lawyers while blocking liberals from considering consolidating right-wing control over the judiciary for a generation or more.
“Judicial nominees cannot be after the deputy assistant secretary of any department. … They need to see this as a priority and move it ahead of the other nominees, ”said Caroline Fredrickson, who spent a decade as president of a group of liberal lawyers and judges, the American Constitution Society. “These are lifelong commitments. … Just load them in advance. “
It can be difficult to decide which nominees to expect. The positions that can be confirmed by the Senate in the Department of Justice include employees who oversee the enforcement of antitrust, civil and tax rights laws, as well as employees who distribute law enforcement funds, regulate firearms, and direct firearms. Antitrust Agency. There are also US attorneys and delegates for each district across the country who will require confirmation.
The Judiciary Committee also approved key immigration candidates at the Department of Homeland Security and even a Commerce Department official who handles patents and trademarks.
There is no requirement that each nominee have a hearing, but if Democrats shorten the process, Republicans can delay the next stage when Democrats try to approve nominees in the Senate.
Fredrickson, now with the Brennan Center for Justice at New York University, said he would rather see the Department of Justice put pressure on US acting officers and acting US attorneys for a while, if that allows Biden to have more judges in court.
“There are many qualified lawyers in the Department of Justice who can intervene and act,” she said.
It is unclear whether or when Biden plans to replace the main federal prosecutors in the country’s 93 districts. In a memo last week, a DOJ official said that the government was not taking immediate action to fire the employees who currently perform these jobs.
“All the remaining US prosecutors and marshals have been asked by the new government to continue serving for the time being,” wrote DOJ’s longtime administrative chief, Lee Lofthus.
Some of the considerations are quite delicate. Several acting U.S. prosecutors are dealing with politically sensitive investigations into issues related to the Trump administration. At least one, the main federal prosecutor in Delaware, is conducting a criminal investigation into the financial transactions of President Joe Biden’s son, Hunter Biden.
The head of a group pushing for confirmation of liberal judicial nominees and the expansion of the federal bench agreed that judges should have priority, but said the White House should approve some judicial choices first.
“The Justice Department’s nominees will undoubtedly be the priority for the Judiciary Committee, as there are already pending nominated individuals and the first wave of judicial nominees has not yet been nominated. But once they do, we want to see the committee prioritize them with the same urgency that Republicans did for Trump’s choices, ”said Brian Fallon, co-founder and executive director of Demand Justice.
With only a handful of important Justice Department choices announced by Biden so far, activists’ plea to focus on judges can be addressed to both the White House and the Senate, seeking to convey that filling judicial vacancies should not be lost among the thousands of political indications that Biden will make in the coming months.
Biden’s team responded to urgent requests by moving during the transition to begin the process of requesting and verifying possible judicial choices. Incoming White House lawyer Dana Remus wrote to senators before Christmas, asking them to nominate candidates for the nearly 40 vacancies in district courts not filled by the Trump administration. That number is expected to grow in the coming weeks, as Democratic-appointed judges announce retirements.
Virtually all current vacancies are in states with Democratic senators, since Republicans have put into effect the so-called blue policy for judges in district courts, giving home state senators a de facto veto over their state’s nominees. Durbin did not say whether he would follow the same policies that the Republican Party did under the most recent judiciary seats, Sens. Chuck Grassley from Iowa and Lindsey Graham from South Carolina.
In his letter, Remus asked senators to send potential candidates by January 19, but sources close to the process say few have met that deadline. Many senators use formal committees that consider which candidates to endorse and make recommendations. Remus also asked senators to consider less traditional candidates, such as public defenders and legal aid lawyers, who may be less prepared than law firm partners to submit a detailed application in the short term.
“Many of their triage committees are currently filled with lawyers and corporate prosecutors, which explains why they always recommend exactly these types of lawyers,” said Fallon. “Biden’s appeal is having the useful impact of making these existing systems completely overhauled. “
The analysis of possible judicial resumes at the White House is being conducted by Senior White House Counselor Paige Herwig, with the assistance of Special Counselor Tona Boyd, said a person familiar with the situation. Herwig is a former advisor to Senator Dianne Feinstein (D-Calif.), While Boyd is a former advisor to Senator Cory Booker (DN.J.). Both senators sit on the Judiciary Committee.
The extreme sense of urgency that many Democratic activists and Hill officials express on the issue of judicial nomination comes from striking memories of events 12 years ago, when President Barack Obama’s White House was seen as slow to submit court nominations – although Democrats had the absolute majority needed at the moment to overcome any GOP obstructions.
In August 2009, Senator Ted Kennedy (D-Mass.) Died. His absence and eventual replacement by Senator Scott Brown (R-Mass.) Gave Republicans the power to slow down and block Obama’s nominees through obstruction. The GOP also aggressively used the blue-slip process to secure many nominees for district and circuit courts.
The slowdown in confirmations persisted for several years until former Senate majority leader Harry Reid implemented the so-called nuclear option in 2013, breaking the deadlock and allowing Obama to win confirmation from four nominees for the powerful Court of Appeals of the United States. DC circuit.
To streamline the work of the Senate Judiciary Committee this year, Democrats discussed the possibility of holding a confirmation hearing in which Garland would appear alongside Biden’s choices for DOJ seats 2 and 3, Lisa Monaco and Vanita Gupta.
“We talked about it, but we haven’t made a final decision,” said Durbin. “Historically, it has always been AG alone. What the Republicans did for the first time was to combine deputy and associate. I will not rule that out … but my inclination is to stay with the AG separately. “