WASHINGTON – President Joe Biden and Senate Democrats are examining civil rights lawyers and public defenders to appoint judges, embarking on a mission to shape the courts after Republicans reformed them over the past four years, according to senior party officials. and activists.
Democrats have a slim majority in the Senate that gives them control over nominations. They believe they have two years to make their mark and fill an increasing number of seats before a mid-term election in which the ruling party has historically lost seats.
Some are preparing for a Supreme Court retirement as early as this summer, with most speculation centered on 82-year-old Judge Stephen Breyer, who was named Democrat.
In addition to forming a new commission to study structural changes in the judiciary, the Biden White House has asked senators to recruit civil rights lawyers and defense lawyers for judicial positions. Officials working on the matter say they have seen an expression of interest and have started holding sessions to offer information and advice on how to navigate the confirmation challenge.
“We will see proof of this in President Biden’s first set of nominees. I hope they look very different from the kind of judges that Democratic presidents have presented in the past, ”said Chris Kang, co-founder of the progressive group Demand Justice and former Obama White House deputy adviser. “Their origins will be radically different, overall, and that will make a huge difference in our courts.”
For decades, Republicans have prioritized the courts in elections to shake up their base. Democrats practically ignored the issue during the campaign and are now trying to recover after their voters watched in horror as former President Donald Trump and Republicans occupied more than a quarter of the U.S. judiciary with predominantly young conservatives.
Senate Democrats are considering the procedural tools to be used to ensure success – some are calling for the elimination of the “blue slip” courtesy that gives senators the veto over the nominees they serve in their states. Republicans ended it for circuit judges, and now Democrats are considering extending it to district nominees.
Many Democrats remain furious at the refusal of Republican Senate leader Mitch McConnell to let them fill a seat on the Supreme Court months before the 2016 election, an extraordinary move he followed in confirming a conservative judge the week before the presidential election. 2020.
“I call it fixing the courts,” said Sen. Sheldon Whitehouse, DR.I., a senior member of the Judiciary Committee, in an interview. “We have to make sure that we are filling vacancies with reliable, neutral and fair judges, rather than the political agents we saw so many in the Trump years.”
“The prospect that we will not always have a Democratic president and a Democratic majority in the Senate should motivate us to act with real speed this time,” said Whitehouse, calling it “a very prudent goal” to fill all judicial vacancies by the end of 2022.
He urged fellow Democrats to ignore “Republican procedural complaints” on issues like blue papers after the tactics they used to tilt the courts to the right.
A Democratic aide who works on nominations said the Senate’s priority over judges will be to fill vacancies in the blue state’s district courts. The aide said Democrats will “wait and see” whether Republicans deal with the fewest seats in the red states in good faith before deciding whether to move forward and fill them.
Fill all judicial vacancies?
There are already about four dozen seats in the federal district courts and a handful in the circuit courts. That number will undoubtedly increase when more judges retire and if the nominee for Attorney General Merrick Garland is confirmed, forcing him to vacate his seat on the DC Circuit.
“We have many vacancies that we would like to fill. We want to do this in an orderly and sensible way, ”said new Senate Judiciary President Dick Durbin, D-Ill., To NBC News.
Even if the Senate is divided into 50/50, under the power-sharing agreement the leaders are likely to approve, if all Democrats remain united, they will be able to approve the judges without any Republican support.
With Democrats focused on confirming Biden’s office and moving forward with his Covid aid package, some people involved in the lawsuit say they expect the first batch of court orders to arrive in the spring.
White House lawyer Dana Remus told senators in a recent letter to recommend candidates for vacancies in district courts within 45 days of a vacancy so that they could be considered “quickly”.
“With respect to the positions of the United States District Court, we are particularly focused on naming individuals whose legal experiences have historically been underrepresented in the federal court, including those who are public defenders, civil rights and legal aid lawyers, and those who represent Americans in all walks of life, ”wrote Remus in the letter, obtained by NBC News.
That means fewer prosecutors and “big corporate lawyers”, which Whitehouse said they tend to have a “high speed track” for the judiciary. He said the plaintiff’s lawyers will be rejected by groups like the Chamber of Commerce, but praised Biden for seeking “professional diversity” along with demographic diversity.
Remus’ letter “really lit a fire” in the Senate, said the Democratic aide, adding that regular talks are taking place between the senators and the White House.
Republicans, aided by a well-funded network of conservative groups, hope to fight the Democratic effort to shape the judiciary. Iowa Senator Chuck Grassley is on the verge of becoming a senior member of the Judiciary Committee, serving as the party’s first line of defense against Biden’s nominees.
But the GOP will have to choose its battles.
“There is always deference to a president,” Grassley said in an interview, promising not to approach the issue “any differently than he did in the past.”
The small Democratic majority means that the more aggressive ideas that progressives espoused – including the addition of four Supreme Court seats – are unlikely to go anywhere.
Biden started a commission he promised during the campaign that will review the structure of the courts and recommend changes. It will be co-chaired by Bob Bauer (who served as one of Biden’s top lawyers during the election) and Cristina Rodriguez (Yale law professor and former Justice Department attorney), according to an administrative source familiar with the plans. of Biden.
The commission will include a “wide range of expert opinions” and will present public testimony, said the government source, who said the recruitment of commissioners “has made significant progress” but has not been completed. The source added that the focus will include lower courts – not just the Supreme Court.
A White House official said Biden “remains committed to a specialized study of the role and debate on court reform and will have more to say in the coming weeks.”
Senate majority leader Chuck Schumer, DN.Y., took no position on the expansion of the Supreme Court, saying he will wait and see what the Biden commission proposes. But he said the lower courts should get new seats, arguing that some part of his state, like Buffalo, “does not have enough judges.”
He told Rachel Maddow of MSNBC in an interview on Tuesday that Democrats “can take many” seats.
“Many vacancies will appear. And I think there are a lot of judges – appointed Democrats who did not assume senior status while Trump was president who will now do so, ”said Schumer. “So we have to fill it out.”