More than a third of judges nationwide serving on federal appeals courts one level below the Supreme Court are eligible to step back from active service. With Democrats narrowly controlling the Senate — and with the prospect that they could lose control during the 2022 midterms — Biden intends to move quickly to fill openings that arise on courts affecting significant policies, including environmental regulations, gun laws and immigration.
The fledgling administration already has at least five circuit court openings to fill. More are expected soon as a wave of retirements or judges taking lighter caseloads comes through, including from those who stayed active through Trump’s tenure to avoid having him name their successors.
Top officials in the Biden administration say they are placing far more emphasis on judicial nominations and plan to fill slots faster than Democrats have in the past. At the Supreme Court, the administration could face the retirement of Justice Stephen G. Breyer, 82, a potential vacancy Biden has vowed to fill with a Black woman. And even as Biden signs a burst of executive orders and presses for a $1.9 trillion coronavirus relief package, senior administration officials view judicial nominees as one area where the president will invest early political capital.
“People are approaching this with a different sense of urgency,” said senior White House counsel Paige Herwig, a former Senate staffer who was associate counsel to President Barack Obama and is leading the new administration’s effort. “And they understand. They saw what the Trump administration did for four years.”
The Obama administration was often criticized for not prioritizing nominations, and Trump successfully installed more than 200 judges, working with Senate leader Mitch McConnell (R-Ky.), who mostly made good on his promise to “leave no vacancy behind.”
The new administration will take a page from the Trump White House and speed up the process by forgoing the American Bar Association review of candidates in advance of formal nominations.
Biden served 14 years as the top Democrat on the Senate Judiciary Committee, and he and his senior advisers have a deep understanding of the importance of the lifetime appointments and the need to move swiftly. White House Chief of Staff Ron Klain helped oversee nominations for Biden as chief counsel on the committee as well as in the Bill Clinton White House. Vice President Harris comes from a legal background and was on the Senate Judiciary Committee.
“We have a president who has had the issue of judges and filling vacancies as part of his career for decades,” said former senator Russ Feingold (D-Wis.), who served with Biden on the Judiciary Committee and now leads the American Constitution Society, one of the interest groups recommending nominees for the bench. “I know he cares about it.”
Judges become eligible to take a lighter caseload, known as “senior status,” through a combination of their age — at least 65 — and years of service on the bench. Of the more than 60 judges eligible, more than half were nominated by Democratic presidents, according to Federal Judicial Center data analyzed and tracked by Russell Wheeler of the Brookings Institution.
Legal observers expect this pool of judges to lead the way in announcing plans to step back from active service.
The former chief of the New York-based U.S. Court of Appeals for the 2nd Circuit, Judge Robert A. Katzmann, dated his retirement letter to Biden’s first day in the White House. Katzmann, a Clinton nominee, will continue to serve as a senior judge while teaching at the New York University School of Law. Judge Denny Chin, an Obama nominee on the same court, will take senior status in June. And Judge Carlos F. Lucero, a Clinton nominee on the Denver-based U.S. Court of Appeals for the 10th Circuit, announced his plans to step back effective Feb. 1.
At the district court level, more than a dozen judges, nominated by presidents of both parties, announced plans to retire or take senior status in Biden’s first week on the job, and there are more than 60 current or announced trial-court openings. Judge Emmet G. Sullivan, a Clinton nominee who presided over the prosecution of former Trump national security adviser Michael Flynn, on Thursday announced plans to take senior status in April.
“Lots of Democratic appointees have deferred going senior or retiring because Trump was president,” said Ed Whelan, a fellow at the conservative Ethics and Public Policy Center and a close observer of the courts. “If you’re a Democratic appointee disinclined to have a Republican replace you, you were even less inclined to have Donald Trump replace you.”
Slim window to act
The Biden administration got an early reminder of the importance of the courts when it comes to enacting policy. A federal judge in Texas, nominated by Trump, blocked Biden’s 100-day deportation “pause” last week in a challenge brought by the state’s Republican attorney general.
Ahead of the 2020 election, judges nominated by Trump were more likely to rule against efforts to loosen voting rules amid the coronavirus pandemic and side with Republicans seeking to enforce restrictions.
When Trump took office in 2017, there were 17 openings to fill on the 13 regional circuit courts, in part because the Republican-controlled Senate had slowed the confirmation process during Obama’s final two years. In four years, Trump successfully nominated a record number of young, conservative judges — 30 percent of the appeals court bench, with 54 judges and three Supreme Court justices.
He was able to accomplish more in four years than Obama — who had 55 circuit judges appointed and two Supreme Court justices — did in eight.
Even before Biden was sworn in last month, incoming White House legal counsel Dana Remus asked senators to immediately prepare to send recommendations for candidates to serve as trial-court judges in their home states. Remus emphasized the need to submit names within 45 days of a new vacancy being announced and the administration’s interest in nominees from diverse personal and professional backgrounds.
During the Obama administration there was an emphasis on creating historic firsts, with the first openly gay federal appeals judge, for example. Some districts got their first female judge or first Black judge.
In contrast, 84 percent of Trump’s nominees were White, compared with 64 percent of those tapped by Obama. Twenty-four percent of Trump’s picks were women, compared with 42 percent of those Obama nominated, according to data compiled by the American Constitution Society, one of the groups trying to increase diversity on the bench.
Biden’s team is also placing a priority on varied professional experience, not just encouraging prosecutors or nominees from prominent law firms but putting a call out for public defenders and civil rights attorneys, “and those who represent Americans in every walk of life,” Remus wrote in a December letter to senators, first reported by HuffPost.
Before Democrats secured a slim Senate majority in January, there were questions about whether McConnell, had he remained majority leader, would stymie Biden’s nominations. But because Democrats now control the floor schedule, Senate Majority Leader Charles E. Schumer (D-N.Y.) will be able to follow McConnell’s blueprint to tee up an assembly line of lower-court judicial nominees and quickly move nominees to a confirmation vote. Appeals court nominees — and those nominated to the Supreme Court — will still have to go through a lengthier 30 hours of debate after a preliminary vote.
“All of these judges care deeply about their courts and the administration of justice” and would not have wanted to leave the bench shorthanded with nominations possibly held up in the Senate, said Christopher Kang, chief counsel of Demand Justice, one of the liberal interest groups recommending nominees.
But with Democrats in control, Kang said, “now we’re in a place where nominations can move more quickly.”
Unlike in the Obama administration, the Biden White House will not review potential nominees in advance through the bar association. The new administration will consult with the ABA, among others, but the rating of candidates will come after the formal nomination, according to a Biden official who spoke on the condition of anonymity to discuss the internal process for nominations.
While the 2022 electoral map favors Democrats hoping to preserve their majority — Democrats are defending 14 seats while Republicans will have to defend 20 — midterm elections can be inhospitable to an incumbent president’s party. That gives Democrats another reason to act quickly.
Trump and his former White House counsel Donald McGahn drew heavily from a list of nominees assembled by the Federalist Society . Biden’s team is fielding recommendations from a broader constellation of interest groups, which might make filling vacancies more complicated.
White House officials have been conscious of balancing the desires of several Democratic interest groups, while attempting to keep the party united and use judicial nominations as a rallying point, in the same way they have motivated Republican voters for decades.
For many Democrats the death of Supreme Court Justice Ruth Bader Ginsburg — whose seat Trump filled just before the election — elevated not only the importance of prioritizing the courts but the timing of vacancies.
Biden is also planning to soon form a bipartisan commission to within 180 days propose changes for the Supreme Court and the federal judiciary. Among the ideas the commission could study are expanding the Supreme Court and requiring term limits for federal judges.
One of Biden’s first nominees is likely to fill the anticipated vacancy created on the influential U.S. Court of Appeals for the D.C. Circuit by his nomination of Judge Merrick Garland to serve as attorney general. Garland was already eligible to take senior status, along with three other judges on the D.C. Circuit: David Tatel, Judith Rogers and Karen LeCraft Henderson.
The composition of the appeals courts, which typically handle cases sitting with three judges, matters. A full complement of D.C. Circuit judges handled recent high-profile cases allowing a judge to scrutinize the Trump administration’s decision to drop its prosecution of former national security adviser Michael Flynn and Trump’s efforts to shield his tax returns from congressional investigators.
The wave of retirements could have a major impact at the Richmond-based U.S. Court of Appeals for the 4th Circuit, where one-third of the 15 judges are Democratic nominees eligible for senior status. Among them is Judge Diana Gribbon Motz, perhaps the most influential member of the court. Motz often writes for the majority, as she did when a divided full court revived one of the lawsuits alleging Trump was illegally profiting from foreign and state government payments to his hotel in downtown Washington.
On the San Francisco-based U.S. Court of Appeals for the 9th Circuit, nine of the 29 judges are Clinton nominees eligible to step back from active service. Trump reshaped the court by installing 10 judges on the traditionally liberal bench.
Exactly how many openings Biden has to fill will depend in large part on the highly personal decision of individual judges weighing whether to take senior status. There are incentives and drawbacks. Senior judges continue to hear cases, just a smaller number, and still receive their full salary, but without limits on income from teaching, for instance.
But senior judges can no longer sit when the full court rehears panel decisions unless they were part of the initial three-judge ruling. The loss in status also typically affects which opinions they get to write and sometimes the location of their judicial chambers — a judge’s de facto law office.
And there is no question that the timing of the decision matters in the minds of many judges who want a president of their own party to pick their successor and who may have been hesitating the past four years.
“We are seeing quite a few vacancies arise now, but I think that they will be staggered overall, in part because judges are sensitive to how these changes affect their circuit,” said Marin K. Levy, a Duke University School of Law professor who published a recent paper on incentives for taking senior status. “I expect that there will be more to come in the spring and summer months.”
J. Michael Luttig, a former judge on the 4th Circuit, said that for judges considering retirement, the party of the president who names their successor is a “significant consideration,” but not the only consideration.
Luttig was tapped by President George H.W. Bush and stepped down while George W. Bush was in the White House to serve as general counsel of Boeing. Luttig, who was a shortlist Bush candidate for the Supreme Court during the second Bush administration, said it would not have made a difference had the president naming his successor been a Democrat.
“I don’t believe any judge makes his or her decision exclusively on that basis,” Luttig said. “Judges are going to retire or not based primarily on personal considerations.”