Biden wants lasting impact on courts

President Biden is reshaping the court system with a sense of urgency, naming 11 people last week to serve on the federal bench. 

The moves to nominate judges are coming early in the presidency — much sooner than his recent predecessors — as Biden seems hyperaware of the lasting power of the bench and how it dovetails with electoral politics. 

“The courts are a huge priority for the president right now,” said one longtime Biden adviser who is familiar with Biden’s thinking on the matter. “I think he’s eager to get to work because he knows how important the courts are in this moment in time on a variety of issues including redistricting and voting rights and basically every other major issue facing the nation today. 

“These judges will have a lasting impact,” the adviser added. 

The adviser also pointed to the need to act quickly, before the 2022 elections, when Democrats could lose control of the Senate, which would lengthen the nomination process dramatically.

“The speed with which President Biden made his first slate of nominations reflects a priority on filling vacancies on the bench. Some of that may be to counteract the success President Trump had in filling vacancies,” said Barbara McQuade, a University of Michigan law professor who served on Biden’s landing team for the Justice Department during the presidential transition. 

“President Biden may recognize he has only a limited window to fill these vacancies,” she added.

Then-Senate Majority Leader Mitch McConnell (R-Ky.) blocked several of President Obama’s judicial nominees when Biden was vice president, and he could do the same if Republicans win back the upper chamber in the midterm elections. 

Biden’s decision to announce a large batch of nominees quickly also indicates he sees the federal judiciary as an opportunity to energize the Democratic base, which experts say has grown increasingly motivated by judicial issues and vacancies. 

“Historically the Democrat base doesn’t care as much about judges as the Republican base, but that has changed over the past few years,” said Russell Wheeler, visiting fellow at the Brookings Institution’s governance studies program. 

Trump successfully nominated more than 230 federal judges during his four years as president, including 54 judges to court of appeals and three Supreme Court justices. 

Trump’s conservative nominees, who were predominantly white and male, were a major selling point for the former president on the campaign trail, but they also angered and energized progressive Democrats. 

Biden has thus far put a priority on selecting nominees who are diverse in their race, gender and professional background, drawing a sharp contrast with the more homogeneous pool of nominees selected by Trump during his term. 

Of the 11 nominees announced last week, nine are women and three are Black women. Among them is Judge Ketanji Brown Jackson, whom Biden has selected to replace Merrick Garland on the influential U.S. appeals court in Washington, D.C., and who is rumored as a top contender should a Supreme Court vacancy arise. One of Biden’s nominees, Judge Zahid Quraishi, would make history as the first Muslim federal judge if he is confirmed. 

Biden’s selections also included a handful of lawyers with experience in public defense and civil rights law, a nod to pressure from progressive groups. 

“He wants to bolster the representation on the bench of people with different types of legal practice. I think this set of nominations fulfills that promise,” said McQuade.

Historians say Biden recognizes now more than ever how much power the courts have over both policy and politics. 

Julian Zelizer, a professor of history and public affairs at Princeton University, said Biden recognizes the importance of acting quickly, a contrast to the way Democrats have handled judicial politics in the past, which “has been slow and often off guard.”

At the same time, he said, Republicans have also been “extremely effective” in quickly nominating judges to the courts, including most recently Trump. 

“So Biden knows this, Democrats know this, and they are moving a much faster pace this time,” Zelizer said. “With more legislation challenged in the judicial realm, this is another sight that Biden understands how politics has changed since the time he entered and the way the new Republican Party fights its battles.”

The high degree of partisan gridlock in Congress has also bolstered the importance of the courts in making major decisions on policy disputes. 

“I do think that it is true that now that we see so much gridlock in Congress, it does fall more on the courts to get things done,” said McQuade. “People are using litigation in an effort to make policy changes because they are facing a closed door in Congress.” 

Currently there are nearly 70 judicial vacancies on the federal district and circuit courts, far less than the 116 spots filled by Trump in the early months of his presidency. As a result, Biden will find it difficult to reverse Trump’s conservative imprint on the federal judiciary, particularly when it comes to the Republican majority on the appeals courts. 

“He’ll make a dent,” Wheeler said, “but he’s not going to change that around.”

Biden will have greater success bolstering what is already a Democratic majority on the district courts, Wheeler noted.