WASHINGTON (AP) – President Joe Biden has two seats to fill at the influential appeals court in the nation’s capital. which regularly feeds judges to the Supreme Court.
They are among about 10% of federal courts that are or will be opened soon, giving Biden his first chance to make his mark in the American judiciary.
Except an unlikely expansion of the Supreme Court, Biden won’t be able to do anything about the entrenched conservative majority of the Supreme Court anytime soon. Judge Clarence Thomas, 72, is the oldest of the court’s conservatives and ex-President Donald Trump’s three nominees, aged 49 to 56, are expected to be in court for decades.
Democrats have traditionally not made the judiciary a focus, but that is changing after Trump’s four years and the big changes he has made. Biden’s appointments are also the only concrete moves he now has to affect the judiciary in general, although there is talk of expanding the number of judges in first instance courts.
The nearly 90 seats that Biden can fill, which give its occupants a lifetime mandate after Senate confirmation, are less than the ex-Trump inherited four years ago. That’s because the Republicans who controlled the Senate in the final two years of the Obama White House have confirmed relatively few judges.
Included in the count are 10 seats in federal appellate courts, where almost all appeals, except the few dozen decided by the Supreme Court each year, come to an end.
One of the seats is occupied by Merrick Garland, whose confirmation as attorney general is expected in the coming days. Another longtime judge at the court, David Tatel, said he is reducing his duties, a change that allows Biden to name his successor.
Court President John Roberts, Judge Brett Kavanaugh and Thomas were appeal judges in the courthouse at the base of the Capitol before they entered the upper court at the top of Mt.
The late judges Antonin Scalia and Ruth Bader Ginsburg also served on the appeals court, where they formed their enduring friendship for the first time.
After Scalia’s death just over five years ago. President Barack Obama has appointed Garland to the Supreme Court, but Senate Republicans have not even given him an audience, let alone a vote.
When Trump took office in January 2017, he had a seat in the upper court to fill. Trump ended up making three Supreme Court appointments to track 54 choices of appellate courts and 174 trial judges, aided by the determination of then Senate majority leader Mitch McConnell to, as he said, “leave no vacancy behind” .
Democrats and their progressive allies say they have learned a lesson or two from the Republicans and intend to give judicial nominations a greater focus than in previous Democratic administrations.
“It’s an exceptional situation where you have a president and the people around you who really see it as a high priority,” said former Sen. Russ Feingold, a Wisconsin Democrat who served with Biden in the Senate for 16 years. Feingold is now president of the American Constitution Society.
“I think President Biden knows that part of his legacy will undo the damage done by Trump as far as possible,” said Feingold.
So far, liberal groups are encouraged by the signals that the White House is sending. White House lawyer Dana Remus wrote to senators in December that recommendations for new judges should come within 45 days of the vacancy.
Biden has already pledged to nominate a black woman for the Supreme Court if a vacancy is opened. Judge Stephen Breyer, 82, is the oldest member of the court and may retire, but has not announced any plans.
Democrats are looking for various types of diversity after the Trump years, in which more than 75% of judicial nominees were men and 85% were white.
In addition to race and gender, liberal groups are pushing for a diversity of experiences so that public defenders and lawyers of public interest can be considered together with lawyers and promoters of large law firms that have predominated in recent administrations.
“Our opinion is that we would like to see them prioritizing experiential diversity, which would be new and different from the two previous Democratic administrations,” said Nan Aron, president of the Liberal Alliance for Justice, referring to the presidencies of Obama and Clinton.
So far, judges who have announced that they are retiring or taking senior status, the term for a reduced workload, have been nominated primarily by Democratic presidents. Some seem to have postponed retirement until Trump left the White House.
An additional four dozen or more are eligible to assume senior status or will do so before the end of Biden’s term in 2025. These judges must be at least 65 years of age and 15 years of service on the board.
But Democrats are also eyeing a major expansion of the judiciary for the first time in 30 years. The creation of new magistrates to deal with the increasing number of cases in parts of the country could attract bipartisan support, although it could provide an unexpected sort of court appointments for Biden in the short term.
Republican Idaho Senator Mike Crapo recently wrote about the need for another federal judge for his state, and Representative Darrell Issa, R-Calif., Supports the addition of judges in California and other states.
“There is a broad agreement here on the stage on both sides,” Issa said last month during a hearing by the House Judiciary subcommittee on the expansion of the court.
But some Republicans and conservative groups are concerned with what Democrats can try to do now that they control Congress and the White House. If Democrats conclude “that the courts are somehow unbalanced and create magistrates to fill them and distort the courts, I’m not okay with that,” said John Malcolm of the Heritage Foundation, who helped compile a list of potential Supreme Court candidates. Cut to Trump.
At the same hearing, Rep. Steve Chabot, R-Ohio, said Democrats controlled the House in the last two years of Trump’s term, but did not hold hearings and did not propose legislation on the expansion. “I want to know why?” he asked.