After Trump, Biden goes aggressive on courts

President Biden has set an aggressive judicial agenda in his first five months, rapidly nominating a group of potential judges with an unprecedented emphasis on racial, professional and gender diversity.

His early effort to cement a lasting legacy on the courts comes after four years of former President Trump’s successful campaign of filling the judiciary with right-wing judges.

Biden has already nominated 24 people to the federal courts, three of whom have been confirmed by the Senate over the past two weeks.

“The most striking thing is they have really moved quickly out of the box with nominations,” said Russell Wheeler, a fellow at the Brookings Institution who studies the composition of the judiciary and the confirmation process.

Biden’s first slates of nominees have been notable for their personal and professional diversity, with the president seeking to add more women and people of color, as well as former public defenders and public interest lawyers, to the bench.

The emphasis on professional diversity came after a pressure campaign from activists who called on Democrats to take a new approach to selecting judicial nominees in order to add balance to a federal judiciary that is dominated by former prosecutors and corporate attorneys.

Democrats and activists have shown a sense of urgency around judicial confirmations after four years of the Trump administration and a Republican Senate majority making their own nominations a top priority.

During Trump’s one term, he saw 234 of his nominees confirmed to lifetime appointments on the federal bench, including three Supreme Court justices and 54 judges for the nation’s powerful appellate circuit courts.

Trump’s judges were overwhelmingly white and male and were largely drawn from pools of legal talent selected by conservative judicial activists like the Federalist Society.

And a study from three political scientists published late last year found that Trump’s appointees have proven themselves to be more conservative than those nominated by any recent previous administration, particularly when deciding cases concerning economic or labor regulation and civil rights and liberties. 

Trump’s success at leaving behind a lasting conservative legacy on the courts has helped advocates make the case that Biden and Senate Democrats need to not only prioritize confirmations, but also change the calculus that goes into deciding who gets a lifetime appointment.

The hope for those pressuring Democrats for a reassessment is that the administration can disrupt harmful legal consensus favoring the powerful by adding judges who spent their careers advocating for poor criminal defendants, civil rights or environmental protections.

Molly Coleman, the executive director of the progressive People’s Parity Project, said that the current imbalance on the court has made the legal system inhospitable to those championing causes and clients that sitting judges likely argued against as attorneys.

“Judging is complicated and there are many factors that go into it,” Coleman said. “We don’t know, when somebody is nominated, how they’re going to rule on every single case or every single issue that comes before them. But the best guess that we have is based on their past record, and so we need to be looking at what they’ve been doing and how they’ve lived their professional life.”

Jo-Ann Wallace, the president and CEO of the National Legal Aid and Defenders Association, said that her organization has been pleased by Biden’s commitment to nominating judges with experience representing low-income clients.

“Research tells us that in every study diversity matters and leads to more positive results, so having a diversity of viewpoints on the bench that includes, for example, more equal representation between public defenders and prosecutors, as well as civil legal aid, will enhance judicial decisionmaking just as it’s true in every other arena,” Wallace said.

“When you’ve worked either as a public defender or as a legal aid lawyer, when you have seen firsthand exactly how systems perpetuate inequity, then it’s going to better inform decisionmaking, because it will be tethered to realistic outcomes,” she added.

Senate Democrats, who are tasked with providing the White House with recommendations for nominations in their states, have with some exceptions largely heeded Biden’s call for judges who will bring different professional experiences to the bench.

This week, Senate Majority Leader Charles Schumer (D-N.Y.) hailed Biden’s nomination of Myrna Pérez, a voting rights advocate, and federal public defender Eunice Lee to the 2nd Circuit Court of Appeals.

“The cupboards of the federal judiciary have long been stocked with former prosecutors and corporate lawyers. It’s about time that civil rights attorneys, voting rights attorneys and federal defenders like these two outstanding nominees join the ranks,” Schumer said on the Senate floor Wednesday.

It’s still too early to tell whether Biden will be able to match Trump’s record on judicial confirmations or what impact his appointees will have on the legal system.

Wheeler said that Biden’s main hurdle will be the Democrats’ razor-thin margin in the Senate and whether they can hold on to it next year in the midterm elections. He expects Republicans to put up opposition to the White House’s high-profile circuit court nominees.

“The days when they used to make a nomination and the Senate confirmed them are gone,” Wheeler said. “There’s going to be a fight over each one of them, it seems to me.”