Now it is Biden’s turn, and so far his government is signaling that judicial appointments will be a high priority and that Democrats may even tear up the pages of Trump’s handbook on the subject.
There are currently 60 qualified vacancies and 20 vacancies that will occur in the future, as judges formally announce their intentions to retire, assume senior status, or resign, according to the United States Administrative Office of Courts.
Biden promised to nominate the first black woman to the Supreme Court and, even before his inauguration, his transition team sent a letter to Democratic senators requesting recommendations for vacancies that could arise in district courts.
There is also an ongoing effort to speed up the confirmation process, no longer allowing the American Bar Association to review judicial candidates before being nominated.
Some progressives, however, have legitimate concerns about whether the White House and the Senate will maintain the discipline and vigor necessary in the coming weeks and months to keep judges a priority as attention shifts to other areas.
They still remember that President Barack Obama lost his focus when faced with a similar opportunity early in his presidency and believe that he missed an opportunity to focus on the courts.
Chris Kang, chief adviser to the progressive group Demand Justice, believes that things will be different now.
“President Biden’s approach to court nominations will put the nail in the coffin of conventional wisdom that Democrats don’t care enough about the court,” he said in an interview.
Pending slots
As things stand, since Biden’s inauguration, judges in powerful courts have already announced plans to assume senior status, giving the new president a chance to replace them with younger candidates.
Since Biden’s inauguration, five vacancies have been announced in the appellate courts, as well as a handful in district courts, and more are expected.
Judge Robert A. Katzmann, for example, who drafted an opinion that would have allowed Trump’s tax records to go to a New York prosecutor, announced plans to assume senior status at the 2nd Circuit Court of Appeals in the United States.
Another notable wave will emerge when Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit is confirmed as Attorney General for Biden. Democrats have not forgotten that Garland, appointed by Obama in early 2016 to replace the late judge Antonin Scalia, had a hearing denied by Senate Republicans, who simply accepted the nomination until the end of the presidential election.
The DC Circuit is considered a breeding ground for Supreme Court nominees and served as a springboard for Chief Justice John Roberts, as well as Judges Clarence Thomas, Ruth Bader Ginsburg, Scalia and Brett Kavanaugh.
At the top of the list of potential candidates is Judge Ketanji Brown Jackson, who sits on the US District Court for the District of Columbia. She is a former Breyer employee who also served as a public defender. California Supreme Court Judge Leondra Kruger is a potential candidate for Breyer’s seat if he resigns.
In addition, in the coming weeks, Biden is expected to reveal the adhesion of a bipartisan commission that will analyze the reviews of the Supreme Federal Court, including the potential for term limits and the addition of more seats to the bench.
How Trump and Senate Republicans transformed the courts
Under Trump’s command, a careful troika composed of White House adviser Don McGahn, Senate Majority Leader Mitch McConnell and Senate Judiciary President Chuck Grassley worked immediately and almost seamlessly to change the face of the courts.
Democrats were furious and accused Republicans at times of ignoring the rules to hinder the process, but with Republicans mostly in the Senate during all four years of Trump’s presidency, Democrats were unable to stop all but a handful of nominations. of indications.
Republicans carried out a controlled investigation operation, eased long-standing institutional norms, and, perhaps most importantly, maintained momentum, avoiding distractions, as other issues exploded around the presidency.
The process – not an easy task covering three branches – required discipline and external support. Under Trump, the conservative Federalist Society and later a group called The Article III Project supported Trump’s nominees.
“President Trump’s biggest and most important achievement has been his transformation of the federal judiciary, including the consolidation of a conservative majority in the Supreme Court and his appointment of 54 judges to the critically important federal appellate courts,” said Mike Davis, president of the Project. Article III. “These lifetime appointments will provide an important constitutional check on the scope of the government by the Biden government.”
In Obama’s early years, outside groups often disagreed about potential candidates and political branches lacked the necessary laser focus to accompany a candidate for confirmation.
During the run-up to the 2016 election, Trump made the Supreme Court and lower courts a campaign issue. Democratic presidential candidate Hillary Clinton rarely touched on the issue and some liberals were debating whether Garland should remain the Democratic choice.
After Trump won, Democrats found themselves helpless as they fought off the attack by nominating hearings. They were largely sidelined when Judge Neil Gorsuch won the seat once offered to Garland, Kavanaugh won confirmation after perhaps the most ferocious nomination fight in history and conservatives rushed to take the place of liberal icon Ruth Bader Ginsburg with Conservative Justice Amy Coney Barrett. Ginsburg died about four months before Biden took office.
The Supreme Court now has a solid conservative majority of 6-3 that can last for decades, as issues such as abortion, immigration, affirmative action, religious freedom, the right to vote and the Second Amendment reach the upper court.
A final warning for progressives came at the end of Barrett’s confirmation hearing in October, when Democrats, still furious that Republicans had accelerated deadlines in the run-up to the election, witnessed Dianne Feinstein, a senior member of the Judiciary Committee, a Democrat of the California, embrace President Lindsey Graham, a Republican from South Carolina, and praise him for his efforts during the hearings.
The then Senate minority leader, Chuck Schumer, a Democrat from New York, said he had a “long and serious” conversation with Feinstein. Progressives felt betrayed, and it wasn’t long before Feinstein announced that he would step down as a Democrat on the committee.
The Democratic Team
Now that Biden is in charge, there is a new troika in town. White House adviser Dana Remus, Schumer – now the majority leader – and Judiciary President Dick Durbin, an Illinois Democrat, are on the scene.
Brian Fallon, who runs Demand Justice, launched in 2018, is determined to maintain pressure from outside the government. His group wants Biden’s team to distance itself from recent models and to nominate a diverse group of individuals, including public defenders, civil rights lawyers and legal aid lawyers.
“They are overturning the model of lawyers that Democratic presidents will consider for the judiciary. Prosecutors and corporate lawyers are out; civil rights lawyers, public defenders and labor lawyers are at stake,” he said.
According to a Democratic aide on Capitol Hill, Durbin will follow the same rules that Republicans followed when the committee was led by Grassley and Graham. They hope to hold audiences on a regular clip and present several nominees on any audience panel. There will be an emphasis on diversity, but also, following Trump, they will look for young nominees who can serve for decades.
Although some question whether Congress will prioritize Justice Department nominees over judges, the aide rejected the concern.
“There is time and precedent to move DOJ nominees alongside judiciary nominees,” said the advisor.
“I have every reason to believe that the nominees you will see in this White House will be eminently qualified, which was not always true for the nominees you saw presented by Trump,” added the person.
The momentum will also come from other sectors of the White House, most obviously starting with a president and a vice president who have spent time serving on the Judiciary Committee, with Biden as its former president.
Klain is a veteran of numerous confirmation hearings and a former registrar of Judge Byron White. Paige Herwig, a former advisor to former Attorney General Loretta Lynch, as well as a veteran of the Senate Judiciary and Justice on Demand Committee, will serve as a nominating advisor and will receive help from Tona Boyd, a former chief adviser to Senator Cory Booker .
As Biden focuses on the nominations, he will find that his policies and initiatives, such as the immigration action temporarily brought by Judge Tipton, will reach the courts.
And while Trump’s nominees did not always vote for him, a fact that became clear as he struggled to overthrow the election, in general his nominees will share a conservative legal perspective.
Court President John Roberts may have tried to distance the judiciary from Trump’s attacks when he rebuked the then president in 2018, saying “we have no Obama judges or Trump judges”.
But the reality is that there are nominees from Obama, Trump and Biden.
And now, with a new cascade of judicial retirements and an expected avalanche of new executive orders, judges will make a difference.