The Washington PostDemocracy Dies in Darkness

Biden has installed a significant number of judges from diverse backgrounds — now comes the hard part

The pace reflects an urgency from the Biden White House and Democratic senators to make up ground lost to Republicans who prioritized filling the judiciary with conservatives during the Trump presidency.

President Biden discussed the importance of criminal justice reform during his commencement speech at South Carolina State University on Dec. 27. (Video: The Washington Post)
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President Biden has muscled through the highest number of federal judges in the first year of a presidency in four decades, rapidly filling vacancies at a clip that outpaces his predecessor with judicial picks from a diverse range of racial, gender and professional backgrounds.

The pace reflects an urgency from the Biden White House and Democratic senators to make up ground lost to Republicans who prioritized filling the judiciary with conservatives, putting in place more than 230 judges during the Trump presidency.

The White House, Senate Majority Leader Charles E. Schumer (D-N.Y.) and the Senate Judiciary Committee have effectively built a conveyor belt of candidates that swiftly moves nominees from their White House nomination to congressional hearings to floor votes, with Schumer reserving prized floor time for confirming Biden’s judiciary picks over other priorities.

As the one-year mark of the Biden presidency approaches, the Democratic-controlled Senate has confirmed 40 judicial nominees and has the opportunity to shift the balance on several regional appeals courts in part because of a wave of judges stepping back from active service. And Biden’s picks are far more diverse than those of his predecessors as this White House seeks to offset President Donald Trump’s success and nominees who were predominantly White and male.

And when it comes to nominations, speed has been of the essence from the start, with administration officials well aware that any factor out of their control could disrupt the steady pipeline of candidates being confirmed at a record pace.

“I’m proud I appointed Black — more Black women to the federal bench and the circuit courts and more former public defenders to the bench than any administration in American history,” Biden said Friday in a commencement address at South Carolina State University. “The previous record was three Black women in eight years. We’ve confirmed four in less than eight months, and there’s more we can do.”

Biden’s success in getting judges confirmed comes as other parts of his agenda are falling apart — including a sweeping domestic policy bill and overhauling the nation’s voting laws.

But the road ahead on judges is likely to be difficult.

The White House will soon begin confronting serious complications in negotiating with a 50-50 split Senate that still gives deference to home-state senators when it comes to key judgeships put forward by the administration. None of the judges who have been confirmed so far hail from a state with two Republican senators, who because of long-standing Senate customs would be able to effectively veto many Biden judicial nominees they oppose for district court posts.

Interviews with more than a dozen GOP senators with judicial vacancies in their states show varying levels of White House outreach in filling those slots. Some of these Republicans said they were satisfied that the administration sought their feedback, while more conservative members said the president ultimately disregarded their input.

Other Republicans say neither they nor their aides have heard from the White House on current vacancies, and instead have moved forward through their own processes to start collecting names of prospective candidates and hope to hear from administration officials soon.

“On something that’s this consequential and important, anytime you’ve got a district court vacancy — any court vacancy — you want to have some input and some visibility into who they’re putting up,” said Minority Whip John Thune (S.D.), the No. 2 Senate Republican.

His home state of South Dakota has one district court opening that became vacant in October. Thune, who as of last week had not heard from the administration on the vacancy, said how much the White House consults with him on the eventual pick will weigh heavily on whether he will try to block the nominee from moving forward through the confirmation process.

“If they don’t, that’s consequential to me,” Thune said. “I think that affects whether or not you would clear somebody.”

One seat in the Middle District of Alabama has been vacant since February 2020, yet the state’s two Republican senators had for months heard little from the administration about filling that slot. It wasn’t until Thursday evening that White House officials first contacted the top aide for Sen. Richard C. Shelby to set up a call in the coming days to talk about the position, according to Shelby’s office.

“We really haven’t gotten to first base for some reason,” said Sen. Tommy Tuberville, the state’s other Republican senator. “I don’t know why.”

Cooperation with Republican senators could help determine whether Biden — a former chairman of the Senate Judiciary Committee — will keep up the pace of confirmations, now on par with Ronald Reagan’s record, according to data collected by Russell Wheeler of the Brookings Institution.

Although Trump had pushed through just 18 judges at this stage in his presidency, the numbers rose dramatically as time wore on, culminating in 234 judges including three Supreme Court justices in four years. Trump’s judicial picks, a priority for then-Senate Majority Leader Mitch McConnell (R-Ky.), solidified a conservative 6-to-3 majority on the high court that has embarked on a monumental term reviewing cases involving abortion, gun rights and religious freedom.

Paige Herwig, a White House senior counsel who oversees judicial nominations, cautioned in an interview that just because a nominee has not been announced for a particular vacancy does not mean the office is not working to find the right candidate. Herwig and her colleagues are closely tracking openings, recommendations and conversations in a complicated set of spreadsheets.

Recruiting judicial candidates began as far back as the transition, when incoming White House counsel Dana Remus wrote to all Democratic senators to request names of qualified candidates from their home states.

On the regional circuit courts of appeal and the district courts, the Biden administration is recruiting more women and people from diverse backgrounds, leading to several firsts: New Jersey District Judge Zahid Quraishi, the first Muslim to sit on a federal district bench; 2nd Circuit Judge Beth Robinson, the first openly gay woman on any federal appeals court; and Lucy Koh to the 9th Circuit, the first Korean American woman on a federal appeals court.

Eighty-four percent of Trump’s nominees were White and 76 percent were men. The former president did not name a single Black judge to an opening on a circuit court of appeals. In contrast, about 75 percent of Biden’s picks are women and more than two-thirds are people of color, according to data analyzed by the American Constitution Society.

The White House is also recruiting people with work histories traditionally underrepresented on the bench, including lawyers who served as public defenders, as well as immigration and labor attorneys.

Certainly, the partisan affiliation of a state’s senators have mattered a great deal when filling judicial vacancies.

On the U.S. Court of Appeals for the 4th Circuit, based in Richmond, for instance, the Senate confirmed law professor and former Virginia solicitor general Toby J. Heytens, with the backing of the commonwealth’s two Democratic senators. The administration has yet to nominate a candidate for a vacancy announced in September on the same court from South Carolina, a state with two Republican senators.

But Sen. Lindsey O. Graham (R-S.C.), who led the Judiciary Committee through contentious confirmation battles in Trump’s last two years in office, said the Biden White House, on judicial picks, has been “pretty good talking with me. I can’t complain about that.”

“Elections matter,” said Graham, who helped advance a handful of Biden judicial picks through procedural votes even while ultimately opposing their confirmation. “Picking people I wouldn’t pick can’t be the reason to vote no from my point of view, because then nobody’d ever vote for anybody.”

For months, the staff for Sen. Jerry Moran (R-Kan.) and White House officials have negotiated over a vacancy on the 10th Circuit that opened up in March, exchanging names and providing input.

“I would say that we have offered advice,” Moran said. “We don’t know whether the advice has or will be accepted.”

But in Tennessee, GOP Sens. Marsha Blackburn and Bill Hagerty said they did not have any ample consultations with the White House on Biden’s pick for a 6th Circuit vacancy in their state — Memphis lawyer Andre Mathis, who was nominated to the post in November. That’s despite a senior White House official saying the administration had been speaking with the Tennessee senators about the vacancy since the summer.

“The White House has been incredibly disrespectful to the precedent that has been accorded to the other side over the course of years,” said Hagerty, who indicated he will not return the so-called “blue slip,” which serves as a permission slip from home-state senators that allows the Judiciary Committee to move forward in a nominee’s confirmation process.

That functionally will matter little in the confirmation prospects for Mathis and other nominees to the powerful appeals courts, since Judiciary Committee Chairman Richard J. Durbin (D-Ill.) has already said he will not abide by the blue-slip tradition for circuit court picks, considering Republicans threw out the century-old practice under Trump.

Still, home-state approval remains significant for district court picks, who are considered to be much more closely tied to the community and are often culled from lists of local lawyers and other legal experts from the area. For now, Durbin has said he would honor the blue-slip tradition for district court candidates.

“I personally couldn’t pick the White House counsel out of a lineup,” quipped Sen. John Cornyn (R-Tex.), whose state also has at least two vacancies. “I’ve never met him or her, which is very unusual. I think ordinarily we’d be hearing from them and talking about these sorts of things.”

The White House said that although it would work with senators on filling vacancies, consultation does not mean approval.

“We work for a president who is a creature of the Senate, who believes very much in consulting with the Senate,” Herwig said.

Meanwhile, Biden is making notable strides in starting to reshape a federal judiciary that Trump and McConnell transformed.

The confirmation in November of Robinson, a former Vermont Supreme Court judge, flipped the balance on the New York-based appeals court, shifting to a majority nominated by Democratic presidents. On the Pennsylvania-based 3rd Circuit, because of recent retirement announcements, Biden also has an opening to change the dynamics of a bench that is evenly divided, with seven judges nominated by Republican presidents and seven by Democrats. That matters because the appeals courts typically review cases sitting with three judges, but also vote as a full court on whether to rehear certain cases.

Earlier this month, four additional appeals court judges — Thomas Ambro of the 3rd Circuit, Diana Motz of the 4th Circuit, and R. Guy Cole and Helene White of the 6th Circuit — said they would pull back from active service, giving Biden additional opportunities to make his mark.

Senate Democrats were also steadily confirming a slew of Biden’s district court judge picks from across the country deep into Friday evening and early Saturday morning, determined to install as many lifetime appointments as possible before Biden’s first year comes to a close. The Senate has already locked in confirmation votes for two more Biden picks to the appeals courts once lawmakers return next month.

“Moving these numbers is possible only because this is a priority for so many folks across leadership and buy-in at the senior levels of the White House,” Herwig said. Of Biden, she added: “It’s a bone-deep, decades-long commitment for him.”