We approach the 50-day mark of the Biden administration this week without the nomination of a single federal judge. Understandable, perhaps, given the truculence of Senate Republicans but disconcerting still when you consider the narrow window in which the White House must operate to get the judges it wants on the bench. The loss of a single Democratic senator, for whatever reason, would threaten the whole operation and allow Senate Minority Leader Mitch McConnell and his obstructionist cohorts to stymie nominations the way they did during the final disastrous years of the Obama administration. President Biden simply cannot allow that to happen.
We keep hearing that Biden and his staff absorbed the bitter lessons of the Obama team’s tepid attitude toward the federal judiciary. I hope so. Count me among those who believe that one of Obama’s biggest failures was his unwillingness to fight harder or smarter for more judges. But we’re getting to the point where faith in Biden’s mastery of the problem must be met by more than anonymous sources leaking to journalists. For example, Axios last week reported, somewhat vaguely, that “the White House is quietly working with Senate Democrats to ensure President Biden has a steady stream of nominees for the federal courts.”
Less vague was the nugget in the same piece that tells us that “incoming White House Counsel Dana Remus asked Democratic senators to send the White House names of potential U.S. District Court judges within 45 days of any vacancy announcement.” That’s great, if it is true, but we’re now 45 days into the Biden administration and it’s time for action. This is especially so now that the Senate Judiciary Committee has endorsed the nomination of Merrick Garland to be the next attorney general and has signaled enough support for his key subordinates, Vanita Gupta, Lisa Monaco, and Kristen Clarke.
And it is especially so now that the House has passed two of the most momentous pieces of civil rights legislation in generations. The For The People Act would protect voting rights at a time of sweeping voter suppression efforts by Republican legislators across the country. So, too, would the John Lewis Voting Rights Advancement Act, federal legislation that shores up the Voting Rights Act after it was gutted in 2013 by conservatives on the Supreme Court. These bills come to us two months after far-right insurrectionists stormed the Capitol to try to halt democratic work to certify Biden’s election victory.
About 40 federal judges have announced they will retire or take “senior status” (which also opens up a spot) since Biden was elected president last November. There were 46 open nominations at the end of the Trump administration, which means the White House has about 90 life-tenured positions to offer to experienced, talented lawyers from various professional backgrounds. Among this total are 10 federal appeals court judgeships, including two on the DC Circuit Court of Appeals, which serves as a feeder court to the Supreme Court. And that’s not counting potential plans to add new judges to limit lingering case delays.
Many of the vacancies are in states where a majority of voters chose Biden over Donald Trump. But there also are vacancies in states that chose Trump over Biden — Texas, Florida, Alabama, Ohio, and Indiana — that the Biden White House must fill. One could argue that Biden nominees in those jurisdictions would have a greater impact on the rights of Americans than would Biden nominees in progressive-leaning states. Think, for example, of the bravery and impact of federal judges like Elbert Parr Tuttle and J. Skelly Wright, who almost single-handedly thwarted racist tactics by southern lawmakers in the 1950s and 1960s.
Take the Second Circuit Court of Appeals, for example, which handles cases from New York, Connecticut, and Vermont. The circuit is particularly important because it almost always is the final word on key cases coming out of the Southern District of New York. Trump “flipped” the court during his tenure from a liberal to conservative majority, but Biden has an opportunity to flip it right back. Three Second Circuit judges, including Peter Hall, a nominee of President George W. Bush, have taken senior status since November. With Democratic senators in all three of those states compiling lists, White House officials should have in their hands now, today, a list of a half-dozen or so qualified candidates for those three jobs.
Under Republican leadership, the Senate Judiciary Committee during the Trump presidency demonstrated how efficiently — how ruthlessly — judicial nominations could be processed. Rain or shine, before and during the pandemic and impeachment proceedings, Republican senators rotely confirmed Trump judges so long as they were endorsed by the Federalist Society. The White House and Senate Democrats should embrace many of the tactics and strategies they just endured and laugh aloud when Republicans complain (as they will) at the heavy-handed tactics. The GOP has waived its right to whine about judicial nominations.
The Biden administration has going for it now something the Trump team did not, especially toward the end of that miserable presidency: quality. There are hundreds of obviously qualified candidates Biden can choose from to begin to repopulate the federal bench. Not just women and men who already are judges and who merit a promotion. But smart lawyers now working in other professions whose experience and academic achievements, not to mention temperament, would enrich the federal bench. The first hundred Biden judicial nominees can make the federal courts smarter, fairer, and more diverse, all at the same time.
So let’s start to see some names. Let’s start to prime the pipeline so that when the history of the Biden administration’s first 100 days is written there is a chapter about the quick, resolute way this reformist president began to chip away at one of the worst and most lasting legacies of the Trump era. There isn’t much Biden can do right away about the Supreme Court, the most reactionary in a century, unless Justice Stephen Breyer decides to retire as a matter of tactics or Chief Justice John Roberts decides to retire as a matter of penance. But 100 Biden judges before the end of 2021 would be a very good start indeed.
The views expressed are the author’s own and not necessarily those of the Brennan Center.