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What Biden Means About a Judiciary that Looks More Like America

The president’s first slate of judicial nominees is a big, important step toward a worthy goal.

April 1, 2021

The Biden admin­is­tra­tion’s first slate of judi­cial nomin­ees is profoundly impress­ive in count­less ways. Let me start to count them.

It’s impress­ive because of the layers of welcome diversity it will repres­ent on the federal bench. Nine women out of the 11 initial candid­ates. People of color. Many on the early-ish sides of their careers. Four former public defend­ers in line for promo­tion of ascen­sion to the bench. And on and on.

Quicker to the punch with 11 nomin­ees before April 1 than Donald Trump or Barack Obama during either of their terms. And bolder than Obama, too, in terms of the progress­ive chops the nomin­ees bring to the table and the clear, strong message they send to Repub­lic­ans and the rest of the coun­try.

It’s not just a message to the 81 million Amer­ic­ans who voted Biden into office after he prom­ised he would look into shak­ing up the federal judi­ciary, includ­ing the Supreme Court. It’s also a message to those Repub­lican-appoin­ted federal judges who waited until Trump had left office before announ­cing their retire­ment or accept­ance of “senior status,” which means that a successor can be appoin­ted. Biden owes them the cour­tesy of replace­ments who are smartly chosen and swiftly confirmed. And it’s a message to every­one that the Demo­crats have learned at last from their coun­ter­parts how to make judi­cial nomin­a­tions a core compon­ent of their polit­ical message. Slogan: Every­one wants the judges who rule their lives to at least try to look like their communit­ies.

The diversity angle I want to high­light among the Biden nomin­ees is diversity of profes­sion. Four of Biden’s first choices are former public defend­ers. It is imper­at­ive that a judi­ciary that handles crim­inal cases — federal, state, or local — consist of more than former prosec­utors or corpor­ate attor­neys given a reward for past partisan service. Judges who have exper­i­ence as defend­ers are judges who have seen the justice system from a perspect­ive no corpor­ate attor­ney has seen. They have exper­i­enced it in ways prosec­utors cannot imagine. And that ulti­mately brings a desper­ately needed diversity of thought to judging.

This is crucial when judging some of the federal drug cases that jam dock­ets around the coun­try. Judging cases involving immig­ra­tion enforce­ment and gun traf­fick­ing. Judging cases involving dubi­ous plea deals forced by prosec­utors or brutal­ity against pris­on­ers.

It’s import­ant in civil cases, too, where prior exper­i­ence as a defense lawyer might allow a judge to better under­stand the perspect­ive of an employee versus an employer, or a tenant over a land­lord, or a private citizen over­whelmed by the arbit­rary exer­cise of govern­ment power. A public defender has to have the heart of an under­dog. Under­dogs are under­rep­res­en­ted on our federal courts today.

Two of the judges would be promoted if confirmed. The first is U.S. District Judge Ketanji Brown Jack­son, who has been tapped to join the DC Circuit Court of Appeals. She served as a federal defender in the nation’s capital and is a top contender to be nomin­ated one day to the Supreme Court by a Demo­cratic pres­id­ent. That these two things can both be true — that a former public defender could again be on a short­l­ist for a Supreme Court vacancy — tells you how far Biden has pushed back here against his party’s recent history and four years of Trump nomin­ees.

A second appeals court nominee, Candace Jack­son-Akiwumi, now in private prac­tice, is slated for the currently all-white Seventh Circuit Court of Appeals. From 2010 to 2020, Jack­son-Akiwumi was a federal public defender in Chicago. The White House says she repres­en­ted more than 400 indi­gent clients. Imagine the perspect­ive she’ll bring to her bench as she eval­u­ates evid­ence and weighs legal stand­ards. Imagine how differ­ent it is likely to be from the panel she would join, which includes 10 or so former prosec­utors and no former defense attor­neys.

Another judge who would be promoted by Biden is Deborah Board­man, who is a federal magis­trate judge in Mary­land and has been tapped for promo­tion to district judge posi­tion. She also served for a decade or so as a federal public defender in Baltimore. Biden also will nomin­ate Margaret Strick­land out of private prac­tice in New Mexico. She was a public defender for five years and must have been a good one, because she was pres­id­ent of the local defense bar there. The real-world exper­i­ences these women will add to their benches will be invalu­able.

Last month, I asked here what was taking the White House so long to announce its first list of nomin­ees. Now we know. In that same piece, I also chal­lenged the Biden admin­is­tra­tion and Senate Demo­crats to embrace and achieve the goal of confirm­ing 100 federal judges before the end of the year. That would mean another nine groups like this one, lined up one after the other, all filling exist­ing federal judi­cial vacan­cies, all requir­ing Senate Judi­ciary Commit­tee hear­ings in a cham­ber split 50–50. It would mean, as well, that the White House now already is work­ing on the second batch and the third. Things worth doing are rarely easy.

There will be confirm­a­tion fights to come and some of those fights, given the state of the Repub­lican party, are likely to devolve into debates over race and gender, part of the very diversity of which the Biden team ought to be most proud. The public defend­ers will be scorned for repres­ent­ing unpop­u­lar clients. They’ll be called inex­per­i­enced or too partisan. It’s all bunk. The mani­fest­a­tion of white suprem­acy here means dismiss­ing qual­i­fied nomin­ees of color after endors­ing Trump’s less-qual­i­fied white nomin­ees. The Senate Judi­ciary Commit­tee will seek to confirm while GOP legis­lat­ors in dozens of states seek to suppress the votes of people of color and while Senate Demo­crats work to get the votes they need on historic voting rights and elec­tion reform legis­la­tion.

Dahlia Lith­wick at Slate put it a bit differ­ently this week as she contem­plated what the first Biden judges mean to the bench and soci­ety beyond it. “The real lesson the Biden judi­cial team may have learned, in replic­at­ing the actions of the conser­vat­ive legal move­ment, is, iron­ic­ally, that if your party has become toxic to the vast major­ity of Amer­ic­ans and Amer­ican lawyers, even pres­ti­gi­ous judi­cial brinks­man­ship affords you only the narrow­est class of nomin­ees,” she wrote. “But apply that same strategy to a party that is genu­inely inclus­ive, respect­ful, and diverse, and the trans­form­a­tion in the legal move­ment can be ground-shift­ing.”

Like I said, if you believe the federal judi­ciary should and can better reflect the Amer­ica it purports to serve, if you think that an appeals court full of prosec­utors is going to consist­ently mete out equal justice to defend­ants in crim­inal cases, Biden’s first picks are both a very good start and a reminder of how far the jour­ney to come will be.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.