As Biden Looks to Diversify the Bench, Party Politics Could Play a Hand in Confirmations

Gavel

The typically routine appointment of judges to federal courts across the country became a major point of debate during President Donald Trump’s presidency, as his administration prioritized filling the hundreds of vacant seats, which included to his two U.S. Supreme Court justice appointments.


President Joe Biden has far fewer seats to fill — he has just 80 current vacancies, compared to Trump’s 234 filled seats. However, he has promised to add diversity to the federal bench, even though his long-term impact and success in the Senate remains to be seen.

For Colorado’s federal district bench, Regina Rodriguez is currently under consideration for the second time for a nomination to the U.S. District Court of Colorado. She was first nominated by former President Barrack Obama but her nomination was a casualty of Senate Republicans’ refusal to seat any judges in Obama’s last year in office. Rodriguez was nominated again by Biden.

Like the 11 other nominees awaiting a U.S. Senate vote to confirmation, Rodriguez has an extensive legal background and brings diversity to the bench. “These highly-qualified candidates reflect the President’s deeply-held conviction that the federal bench should reflect the full diversity of the American people – both in background and in professional experience,” a White House press release stated in the March 30 announcement of her nomination.

Despite Biden’s promises on diverse judiciary nominations, what impact his presidency might have on American courts remains to be seen, according to Dr. Russell Wheeler, a visiting fellow of Governance Studies with the Brookings Institution, a nonprofit public policy organization conducting research on society problems. He’s also a fellow at the Institute for the Advancement of the American Legal System based at the University of Denver and former deputy director of the Federal Judicial Center.

Part of the uncertainty about Biden’s success is because the historic process of selecting, nominating and appointing judges across the federal benches has changed some in the last century — particularly in the past few presidential administrations. Trump saw success in seating judges, thanks to his party’s control of the U.S. Senate throughout his presidential term. Even so, for the first time, some nominees were confirmed without the approval of their home-state senators. Obama appointees also saw little controversy until the death of Justice Antonin Scalia prompted senators to say it was inappropriate to seat a new justice in the final year of a term-limited president’s administration. Prior to Obama’s presidency, few judges or justices were rejected once they made it to a confirmation hearing.

“The selection game has changed a bit,” Wheeler said of the nomination process. Local party leaders would typically inform the White House who they wanted for district benches and the Circuit Courts of Appeals. While the formal process is totally constrained by law, there were plenty of unwritten laws about the process. It used to be that the view of the minority party in Washington that when judge nominations came forward, the mentality was they won the election and thus got to appoint the judges, Wheeler said, and unless there was something very concerning, they would confirm them and expect the same in the future when the party control eventually flipped. “Well, that’s all out the window now,” Wheeler said, adding that now it is very much dog-eat-dog.

Now, the increasingly contentious nominations and confirmations can cause even more delays. Wheeler said that he felt many Democrats were of the view that because Trump lost the popular vote by a significant amount, he did not have the mandate to nominate for the judiciary. The nominees who came from groups tasked by Trump to provide judge candidates were well credentialled but were very conservative about the law.

While Democrats couldn’t stop confirmations with the makeup of the Trump-era government, Democrats voted against the nominations in high numbers, Wheeler said. He feels that a reverse of this action will be seen with Biden’s nominees — “less on the fact of ‘are they qualified?’ and more on the fact that Biden nominated them.” However, it isn’t uncommon for a president to appoint judges nominated under different administrations, perhaps even those of opposing parties.

Wheeler referenced President Warren Harding’s 1921 nomination of President William Howard Taft to become Chief Justice. Roughly three hours later, the Senate had voted and confirmed him. “Now, just think about that for a second — that’s just unheard of today,” Wheeler said. Harding, Taft and the majority of the 67th Congress were Republican, but the timeline stands as an example of the process of appointing judges almost up until the Reagan administration. At that time, in the 1980s, the appointment window from nomination to appointment was roughly 30 to 40 days. In the current day, sometimes it can be in the 200-day range.

Other traditions for nominations have also been upset in recent years. Over the past century, there has been a tradition of the so-called “Blue Slip,” Wheeler said. Under the tradition, the Senate Judiciary Committee chair would ask for approval from each senator; the home-state senator of either party can veto a nomination they don’t like by not giving approval, and the nomination wouldn’t proceed. Under the last Republican administration, however, this veto power wasn’t honored, and the Senate confirmed three judges for circuit and district court seats without blue slips and several others without both home-state senators giving their votes. Senate Judiciary Committee Chair Dick Durbin, a Democrat from Illinois, told The New York Times that the 117th Congress would, as seen in the Trump-era, honor blue-slip vetoes for federal district seats but not for circuit court seats. These changes to informal rules can be very difficult to keep up with, Wheeler said.

And the 117th Congress will likely have many nominations to consider. With a 50-50 split in the Senate, the Biden administration will likely take advantage of its tie-breaker majority, and Wheeler said the Biden administration needs votes to appoint judges. If they lose a Democrat on a nomination, they must find a Republican to take this place. As a result, Wheeler’s guess is that more wheeling and dealing will take place on judicial nominations.

In addition, most of the Republican or Democrat apprehension or approval of judges comes down to how liberally they read the law — not how liberal they are as individuals, Wheeler said.

And in terms of nominating judges for open benches in the current administration, Wheeler said it was unclear how much say senators had in who they actually proposed, such as senators John Hickenlooper and Michal Bennet’s roles in nominating Rodriguez. Wheeler said that Biden had made clear that he wanted to appoint a more diverse set of judges than former President Donald Trump.

Under Trump’s presidency, many of Trump’s judicial selections by 2019 were mostly white and male, but he did confirm two Hispanic judges by that time. In a June 2020 article, Bloomberg reported that Trump was the first president after President Richard Nixon to not appoint a Black appeals court judge in their first four years. While Trump’s district benches were a little more diversified, according to Wheeler, that was mainly because the White House gave state senators of both parties some role in helping select nominees for the district bench, while the appeals nominations were almost all designed, it would appear, by the White House itself.

The people whom Biden is nominating, mostly people of color, reflects his commitment throughout the campaign that he would appoint a diverse group of judges. But, Wheeler said, this trend actually began under former President Jimmy Carter, who during his presidency and as governor of Georgia appointed more women and minorities to judicial positions. “While it’s a little early to say — 12 nominees does not a judiciary make — but my guess is that we’re going to see an awful lot of what used to be called ‘nontraditional appointees,’” Wheeler said.

And Wheeler didn’t feel the only diversity hoped for by this administration was in demographic diversity, but also in vocational diversity, Wheeler said. He added that there was a hope to see more public defender background judges.

Further, with Biden having chaired the Judiciary Committee in the past, Wheeler said that he feels Biden may want to get a middle-of-the-road judge on the bench rather than no one at all. But how much Biden can do to change the face of the judiciary remains to be seen.

“I don’t think there’s any way he’s going to match what Trump did on the Court of Appeals,” Wheeler said. When Trump assumed office, 40% of Court of Appeals judges were Republican appointees, but when he left, it had risen to 54%. Wheeler feels this is due to the number of appointments Trump had to make, and he said he was unsure of Biden’s number. Wheeler said he didn’t see a way to ratchet back these current trends, but he doesn’t believe that letting bygones be bygones will be happening any time soon. “We’ll just have to wait and see what happens,” he said.

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