Biden Makes 1st Judicial Nominations, Including A Supreme Court Contender

Mar 30, 2021
Originally published on March 30, 2021 2:18 pm

President Biden announced his first judicial nominations Tuesday, including Ketanji Brown Jackson for the U.S. Court of Appeals seat vacated by Merrick Garland when he became U.S. attorney general. Jackson is considered a potential Supreme Court contender.

In a statement, the White House said Biden would nominate 10 "individuals to serve as Federal Circuit and District Court judges, and one individual to serve as a Superior Court Judge for the District of Columbia."

"These nominees consist of attorneys who have excelled in the legal field in a wide range of positions, including as renowned jurists, public defenders, prosecutors, in the private sector, in the military, and as public servants at all levels of government," the statement said.

The list is a diverse one: It includes three African American women tapped for Circuit Court vacancies and candidates who would be the first Muslim- American federal judge in U.S. history, the first AAPI woman to ever serve on the U.S. District Court for the District of D.C., and the first woman of color to ever serve as a federal judge for the District of Maryland.

In all, nine of the nominees are women, and nine are people of color. Most have diverse legal experience as well, as defense and prosecution lawyers, and in both criminal and civil practice.

Jackson, who is African American, has served as a federal trial judge for eight years and was on former President Barack Obama's short list for the Supreme Court in 2016.

Biden, as a candidate, pledged to select a Black woman for the high court should a vacancy occur. Jackson, along with California Supreme Court Justice Leondra Kruger, has long been considered a leading contender for such a spot.

Supreme Court Justice Stephen Breyer, who is 82, would be the most likely justice to step down. Despite mounting pressure in the political and academic worlds, however, he has given no indication yet that he plans to retire.

Also nominated on Tuesday were:

  • Tiffany Cunningham, nominee for the U.S. Court of Appeals for the Federal Circuit;
  • Candace Jackson-Akiwumi, nominee for the U.S. Court of Appeals for the 7th Circuit;
  • Judge Deborah Boardman, nominee for the U.S. District Court for the District of Maryland;
  • Judge Lydia Griggsby, nominee for the U.S. District Court for the District of Maryland;
  • Julien Neals, nominee for the U.S. District Court for the District of New Jersey;
  • Judge Florence Y. Pan, nominee for the U.S. District Court for the District of Columbia;
  • Judge Zahid N. Quraishi, nominee for the U.S. District Court for the District of New Jersey;
  • Regina Rodriguez, nominee for the U.S. District Court for the District of Colorado;
  • Margaret Strickland, nominee for the U.S. District Court for the District of New Mexico;
  • and Judge Rupa Ranga Puttagunta, nominee for the Superior Court of the District of Columbia.

Former President Donald Trump, aided by then-Senate Majority Leader Mitch McConnell, pushed through nearly as many appellate judges in one term as Presidents Obama and George W. Bush each did in their combined two terms.

Trump was able to accomplish that, in part, because Republicans also controlled the Senate, and McConnell got rid of most of the remaining rules that had allowed the minority party to slow down or block nominees they objected to.

In contrast, former Democratic Presidents Obama and Bill Clinton, whose party also controlled the Senate at the beginning of their terms, were slow to fill judicial seats, focusing instead on legislative priorities. By the time they did turn in earnest to filling empty judicial seats, they faced frequent Republican opposition including filibusters and, eventually, Republican control of the Senate. That allowed McConnell in the last two years of Obama's presidency to hold many important appellate seats open by blocking the president's nominees. He also blocked the nomination of Garland, now attorney general, to the Supreme Court.

Biden's staff says he has learned that lesson and that the president sees filling judicial seats as a top priority. Indeed, his chief of staff, Ron Klain, was counsel to the Senate Judiciary Committee and, according to friends, "has that lesson imprinted on his brain."

The judicial nomination push began, in fact, even before Biden was officially president. On Dec. 22, Dana Remus, then the White House counsel-designate, sent a letter to all senators asking them to begin the process of recommending names to the incoming president for nomination to vacancies on the U.S. District Courts — the federal trial courts — around the country.

District Court judges are, by tradition, usually proposed by senators from their home states, and the Biden letter urged senators in particular to focus on "nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life."

Importantly, the letter asked that all recommended names be submitted "within 45 days of any new vacancy being announced."

No senator openly opposes the idea of gender and racial diversity on the bench. But Trump named fewer women and minorities than any other president in 28 years.

Some in the progressive wing of the Democratic Party want more than gender and racial diversity. They want more diversity in legal experience. They want fewer prosecutors, more public defenders, for instance. And some groups, like Demand Justice, are pushing essentially for a ban on on judicial candidates who have represented corporations.

Even liberal Democrats in the Senate see that as, in the words of former Democratic Senate Leader Harry Reid, "not sensible." So there are already some clashes occurring behind the scenes, even as the mountain of unfilled judicial vacancies continues to grow.

There are already 84 District Court vacancies with 62 of the seats now empty, plus 22 more judges having announced that they will leave their posts or take "senior status" within weeks or months.

In addition, there are 12 appeals court vacancies to fill. Under the current Senate rules, these are harder to get through because the minority party, now Republican, is permitted to debate appellate court nominees for up to 30 hours, while District Court nominees have a two-hour debate limit under the rules.

In short, even though the filibuster for judicial nominees was abolished in 2013, it is still very time-consuming to confirm any appeals court nominee if there is concerted opposition from the opposition party.

Republican McConnell proved himself a master of that tactic when Republicans were in the minority in the first six years of the Obama administration.

Democratic Sen. Chris Coons of Delaware is worried about that. He notes that the Senate operates on a limited floor schedule with most votes typically taking place Wednesday and Thursday. Senators often arrive for a first vote Monday evening and leave Washington on Friday. To cite just one example, it took eight months for Obama's first nominee to an appeals court to be confirmed.

Coons, a member of the Judiciary Committee who is a close Biden ally, says he wants to "do a couple of weekends and grind them out and demonstrate enthusiasm for filling vacancies. That'll send a signal to those considering senior status that we will take those vacancies seriously," he says.

It would also send a signal to Republicans that judicial fights will cost them time at home. That said, Democrats don't like sticking around in Washington either, as Reid observes.

Keeping the Senate in session to confirm judges is "great in theory," the Nevada Democrat said in an NPR interview. "I've been there and tried to do that. But members want to get home." They have scheduled fundraisers, speeches, "parades and that kind of stuff. It's hard to keep them around."

So, whether Coons and others can persuade fellow Democratic senators to do some marathon weekend sessions is an open question.

Still, Democrats watched in genuine dismay as Trump remade the face of the federal judiciary with a record number of young, ultraconservative federal judges. In just four years Trump appointed 30% of the federal appeals court bench, plus three Supreme Court justices.

When Trump was president and the Republicans were in control, says Reid, they "turned the Senate into a manufacturing site for judges. We are way behind. We need to catch up. Because we have a lot of vacancies, we need to fill them."

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President Biden announced his first judicial nominations today, making clear that he intends to fulfill his campaign pledge for a more diverse federal bench. In all, he announced 11 judicial nominations, nine of them women and nine people of color. Joining us to talk about this latest news is NPR legal affairs correspondent Nina Totenberg.

Hey, Nina.


CHANG: So tell us a little more about today's nominees.

TOTENBERG: Well, they're not only more diverse racially and ethnically, they're much more diverse in their professional experience as well. They're not just prosecutors. They're also public defenders. They have lots of experience in both the criminal and civil practice. They've represented corporations and they've represented individuals. Here in D.C., the president named Ketanji Brown Jackson, an African American trial judge, to fill the appeals court seat vacated by Attorney General Merrick Garland. She's often been mentioned as a potential Supreme Court nominee if a vacancy were to occur.

CHANG: Now, as we both remember, judicial nominations were a top priority for former President Trump but not so much traditionally for Democratic presidents. What seems to be different right now?

TOTENBERG: Well, ironically, Presidents Clinton and Obama, who had both been constitutional law professors, blew their opportunities to make nominations, lots of nominations, early in their terms. But remember, Joe Biden was chairman of the Senate Judiciary Committee or a ranking member for 16 years. And he seems to think that his administration can walk and chew gum at the same time, that it can accomplish legislative priorities, that it can pass legislation and get judges confirmed. In fact, in December, even before he was sworn in, Biden sent out a letter to senators telling them that he wanted their recommendations for filling trial court vacancies within 45 days of any new vacancy being announced.

CHANG: And just remind us, how many judicial vacancies are there right now?

TOTENBERG: As of a couple of weeks ago, there were 62 trial court vacancies, district court vacancies, plus 22 more imminent with the judges having already announced their departure. And in addition, there are 12 appeals court vacancies to fill.

CHANG: And, I mean, with the filibuster now gone in the Senate for judicial confirmations, are we expecting these confirmations to happen quite swiftly?

TOTENBERG: Well, yes and no. The Democrats at least control the timetable since they control the Senate, and trial court judicial nominations can proceed relatively quickly with floor debate limited to two hours. But for appeals court nominees, the rules currently allow up to 30 hours of debate, making it very difficult if there's concerted opposition from the other party. And Republican Leader Mitch McConnell proved to be a master of that when he was the minority leader in the first six years of the Obama administration. You know, I asked Senator Chris Coons of Delaware, who's a Biden ally, about that, and he suggested that if these nominations start to drag out, the leadership should dramatically change the floor schedule and instead put on marathon weekend sessions for judicial nominations. And that would send a message to Republicans that if they drag their feet on nominations, the Senate schedule will not be its usual languid two or three days a week.

CHANG: Well, I know that you bounced that off of former Democratic leader Harry Reid. What did he say?

TOTENBERG: He said that it's, in theory, a good idea. But in practice, Democratic senators, like Republican senators, want to get home for a long weekends of events, fundraising, parades and stuff like that.

CHANG: That is true. That is NPR legal affairs correspondent Nina Totenberg.

Thank you, Nina.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.