After a Strong Start, Biden and Schumer are Repeating Past Democratic Judicial Mistakes
A while back, I wrote about Barack Obama’s mistakes in terms of nominating federal judges, and what Joe Biden should do differently. This boiled down to:
- Biden should nominate judges quickly, and in big batches, rather than one or two at a time. This makes it easier to get most of them confirmed, while pressuring the Senate to move faster.
- Biden should not worry about bipartisanship–Republicans have shown they will not cooperate, and when in power they confirm reliable hacks like Samuel Alito, author of the decision overturning Roe v Wade.
- Biden should nominate judges who are younger, with clear, progressive visions for the Constitution, to counter the right-wing vision that the Constitution requires Republican policy.
Joe Biden started strong–for his first year in office, he largely did all three of these things. Chuck Schumer also moved at a reasonable pace in terms of confirmations. But for the past few months, both Biden and Schumer have been dropping the ball and slipping back into some old, bad habits (mostly in terms of timing/pacing). So what’s going on?
The First Year
Biden had a great first year by historical judicial confirmation standards–he had 11 circuit (appellate) judges and 29 district (trial) judges confirmed between January-December 2021, with two more circuit judges in January 2022. This is the most since Reagan, and the 13 circuit judges matches Trump’s total from January 2017-January 2018.
How did he accomplish this? In part, he nominated people at a much quicker pace than Obama. While Obama nominated only one or two judges at a time, Biden nominated several. His first batch consisted of three circuit and 8 district nominees, and for his first year, he continued nominating 1–2 batches of judges monthly. While this was not as quick as George W. Bush, who once nominated 11 circuit judges in one fell swoop, it was still a strong pace, and much faster than Obama had moved. (And it is all the more impressive considering that Biden was starting with far fewer vacancies than Obama did, thanks to four years of Mitch McConnell relentlessly stuffing the courts with every Republican hack he could find.)
Also of note–Biden nominated a more professionally diverse and progressive cohort than Obama did. Obama tended to over-rely on corporate lawyers and prosecutors, searching endlessly for judges who could get GOP support. Biden, by contrast, has appointed a number of public defenders, most notably Ketanji Brown Jackson. He appointed voting rights advocate Myrna Perez to the 2nd Circuit, and labor lawyer Jennifer Sung to the 9th Circuit. (Both Perez and Sung received 0 Republican votes for confirmation.)
No Bipartisanship
And thankfully, Biden does not seem to have made bipartisanship a key part of his selection of judges–which is very important when even his uncontroversial selections cannot get much more than 3 GOP votes. (These three are Susan Collins, Lisa Murkowski, and Lindsey Graham–they tend to vote for the bulk of presidential nominations of both parties, under the view that presidents should generally be given leeway to appoint who they want.) Cases in point–-Gustavo Gelpi, Toby Heytens, or Lucy Koh. Gelpi, a Puerto Rico native, was nominated to the New England-based 1st Circuit. A moderate liberal, Gelpi had been a federal district judge appointed by none other than George W. Bush, confirmed without opposition, and had served in that capacity for 15 years. Prior to joining the bench, he’d been an assistant AG in Puerto Rico, a public defender, and a magistrate. Seems like a consensus choice? Especially for one of the less consequential circuits? Wrong! Only 5 Republicans voted for Gelpi–the three mentioned above, plus Florida’s two senators (Florida has a large Puerto Rican population).
Heytens’s profile and confirmation vote are also instructive. Heytens is also a pretty conventional nominee — solicitor general of Virginia, Georgetown law professor, and previously assistant solicitor general in the US DOJ. Before that, private practice. He’d clerked for Ruth Bader Ginsburg, and a Reagan-appointed circuit judge. Hadn’t publicly taken a number of stands on contentious issues. Senator Chuck Grassley, the ranking Republican on the judiciary committee, said he believed that Heytens would have a “moderating effect” on the 4th Circuit, and characterized him as “the best pick we could expect from the Biden administration.” And yet–only 4 Republican senators voted for Heytens, Grassley and the Collins/Graham/Murkowski group.
Lucy Koh’s lack of support in some ways is the most revealing of all. A federal district judge appointed by Obama, Koh’s pre-judicial background is utterly conventional–she worked as a prosecutor, then in private practice. Her work was on technical litigation that isn’t politically charged. Confirmed unanimously to the district court in 2010, Koh also received Republican support when Obama nominated her to the 9th Circuit in 2016–but Mitch McConnell never let her nomination come up for a vote, holding the seat open for a Federalist Society-approved Trump appointee. But when Biden nominated Koh to the 9th Circuit? Confirmed with zero Republican votes. (The most likely reason for this? Koh had ruled that California could prohibit small religious gatherings in homes as part of COVID mitigation–a position that Chief Justice John Roberts agreed with.)
Also of note–when Trump appointed Stephanie Davis to the district court in Michigan, she was confirmed nearly unanimously; Hawaii Sen. Mazie Hirono was the only recorded “no” vote, and she probably voted no for reasons other than any specific problem with Davis, who is a Democrat. But when Biden elevated Davis to the 6th Circuit, Collins/Murkowski/Graham were the sole GOP yes votes.
Only two of Biden’s first 16 confirmed circuit judges have received more than 60 votes–and both of these judges were appointed to the Federal Circuit, a very specialized appellate court that hears mainly patent law cases. Nothing politically charged. (J. Michelle Childs, nominated to the DC Circuit and approved in committee on a 17–5 vote, might become the third Biden circuit judge to get 60 or more. Which would be an impressive achievement given the prominence of the DC Circuit.)
[EDIT, July 19th: She did — J. Michelle Childs was confirmed 64–34].
The Republican Party fundamentally rejects the legitimacy of Democratic governance, which extends to Democratic presidents appointing judges. Thus, Biden is right not to nominate judges with a goal of getting bipartisan support, because it isn’t coming. And that’s also why the Biden/Schumer slowdown for the past few months is so problematic. We know what McConnell will do if the GOP takes the Senate.
McConnell’s Past Obstruction
Everyone knows about McConnell’s blockade of Merrick Garland. But McConnell also blocked most of Obama’s nominees for the lower courts in 2015–16. He only allowed 2 circuit nominees to be confirmed in those two years, holding open a bunch of seats for Trump to fill with right-wing ideologues, a decision that is paying off in spades for the GOP. And one of the two nominees McConnell allowed through was to the Federal Circuit, the specialized circuit that doesn’t hear politically charged cases. Hence that’d be the circuit McConnell cares least about. The other nominee he allowed through was Luis Felipe Restrepo to the PA-based 3rd Circuit; Restrepo had the support of PA Republican Sen. Pat Toomey. And even this is revealing, in terms of a GOP Senate no longer approving any D president’s selections: Restrepo had previously worked as a public defender, had done a small amount of work for the ACLU as a young man, and had worked in private practice alongside none other than current Philly DA Larry Krasner, a widely-reviled figure on the right. (They were their own law firm, Krasner & Restrepo.) No way does McConnell now allow Restrepo or anyone like him through. Restrepo got confirmed 82–6 in 2016–today he likely wouldn’t have a chance to get more than the Collins/Murkowski/Graham group among Republican senators. Expect McConnell to be even more obstructive if the GOP takes the Senate this fall, as they are favored to do.
The 2022 repetition of past mistakes
For the past few months, neither President Biden nor Senate Majority Leader Chuck Schumer has performed well in terms of nominating/confirming judges. Since January, Schumer has only brought three circuit judges up for confirmation votes. Not only that, but Schumer has generally waited months before bringing them up, for no apparent reason. Stephanie Davis was approved by the Judiciary Committee in early April–but Schumer didn’t hold a Senate vote until late May, nearly two months later. Alison Nathan was confirmed for the 2nd Circuit by the Senate in late March–again two months after the committee approved her. There are currently 6 circuit nominees who have been approved by committee and are waiting for a Senate vote–but Schumer left town for a long weekend this week without filing for cloture on any of them, and has only scheduled three days of work this week before a two-week recess for July 4. This cannot continue if Democrats are to fill many circuit vacancies before the November election.
Biden, too, has been negligent. No excuses exist for his (and Schumer’s, but mainly Biden’s) decision to shut down the judicial nomination/confirmation process completely while Ketanji Brown Jackson was being confirmed. Trump and McConnell did not do this when confirming their Supreme Court nominees. In fact, Trump nominated Amy Coney Barrett’s successor on the 7th Circuit before Barrett was even confirmed to the Supreme Court, and the Senate confirmed that person, Thomas Kirsch, less than two months later. But Biden? Between mid-January and mid-April, Biden made a grand total of two judicial nominations: Jackson, and the aforementioned Stephanie Davis. He was grossly derelict in his duty, wasting over two months that we can’t get back now. From the Brookings article linked to above:
While Biden has resumed nominating judges, he is not nominating them anywhere near quickly enough to assure confirmations by November. Consider that for the current set of circuit vacancies, we have:
- 6 nominees waiting for a Senate confirmation vote (looking at you, Schumer)
- 6 nominees waiting for a committee hearing and vote
- 2 nominees waiting for a discharge vote (the committee deadlocked 11–11, so Schumer will have to file a discharge motion, followed by cloture and confirmation. This happened with Jennifer Sung’s 9th Circuit nomination as well).
- 11 circuit vacancies with no nominee.
And some of the vacancies with no nominees have been open for months and months. Consider — 2nd Circuit Judge Jose Cabranes announced last October that he would retire upon confirmation of a successor. 8 months later, Biden still has no nominee. This despite the importance of the New York-based 2nd Circuit court, and the opportunity to flip the majority: Judge Cabranes is a conservative, despite being a Clinton appointee. If Biden replaces him, he’d flip the balance from 7–6 conservative to 7–6 liberal. And yet…nothing.
This is also despite the fact that Biden has managed to select other 2nd Circuit nominees, so he presumably already has a pool of vetted candidates. Another 2nd Circuit judge, the very liberal Rosemary Pooler, announced her retirement the very same day as Cabranes. Biden had a successor for Pooler nominated one month later. (And for no good reason, it took the Senate four months to confirm that successor, Alison Nathan.) And Susan Carney, an Obama appointee to the 2nd Circuit, announced her retirement in early November. Biden dallied for five months, but he has picked a successor, Sarah Merriam, whom the Judiciary committee approved last week. So what’s the holdup with choosing a Cabranes successor? No doubt Biden looked at a number of other good candidates when picking Nathan and Merriam!
This pattern repeats for other circuits, like the 4th, perhaps the third-most important court in the nation. (Only the Supreme Court and the DC Circuit matter more.) The 4th Circuit’s power comes from the fact that it oversees Virginia and Maryland, where a lot of federal agencies are located, so it hears a number of federal government-related cases. It also oversees two critical swing states in Virginia and North Carolina. Currently, there are two vacancies, both announced 8 months ago or more. If Biden fills them, it’ll preserve a 9–6 Democratic majority. If Mitch McConnell fills them, it’ll create an 8–7 Republican majority. And yet…no nominees.
It’s straightforward to produce a nominee fast, especially when you have a pool of candidates already vetted. On June 1, DC Circuit Judge Judith Rogers announced she will retire in September. (Technically, she’ll take senior status, where a judge is semi-retired but continues to hear cases part-time, but I’m using the terms interchangeably here.) Two weeks later, on June 15, Biden nominated a successor, Brad Garcia. He needs to get moving on the other vacancies.
Nominees in trouble
Not only this, but at least three of the 14 circuit nominees pending appear in significant danger of not getting confirmed. Andre Mathis, nominated to the 6th Circuit way back in November, has been waiting for a Senate vote for 4 months. Unlike most of Biden’s selections, he does not have the support of his two home-state senators, both ultra-conservative Republicans. While Sen. Dick Durbin, the Judiciary chair, has rightly dispensed with the blue-slip custom that states that judges must have support of the home-state senators to be confirmed, it is theoretically possible that Joe Manchin and Kyrsten Sinema don’t like that and are opposing Mathis behind the scenes.
Two more are Nancy Abudu (11th Circuit) and Arianna Freeman (3rd Circuit). Both deadlocked in committee, 11–11. When that happened last week with the nominee to head the Bureau of Alcohol, Tobacco, and Firearms, Schumer filed and passed a discharge motion that afternoon. But a month has passed since the Abudu deadlock, two months have passed since the Freeman deadlock, and no movement from Schumer. [EDIT, July 19 — Freeman was discharged from committee in late June, but Abudu was not, and nothing can happen on any of these three while Patrick Leahy is absent with his broken hip, as none are likely to receive any GOP votes.]
Biden v Trump
While Biden has a bigger *overall* number of judges than Trump had by this point, that difference is all district judges. Circuit judges are much more powerful and influential, and Trump had 21 of them confirmed by this point. Biden has just 16. And looking ahead–Trump had 26 circuit judges confirmed by the Senate’s August recess in 2018. Schumer will need to move the Senate at breakneck speed to have a prayer of matching that total.
Trump’s judges are more impactful in another way, too–he replaced a substantial number of Democratic appointees. Trump appointed a total of 54 circuit judges over 4 years (that counts Amy Coney Barrett, so the number of Trump appointees currently serving as circuit judges is 53). Of these, 19 replaced Democratic-appointed judges. Of Biden’s 16 to date, only 4 have replaced Republican-appointed judges–and 2 of those 4 were liberals (Juan Torruella of the 1st and Helene White of the 6th). Of Biden’s 14 pending circuit nominations, 0 are replacing Republican-appointed judges. Of the 11 nominee-less circuit vacancies, just 3 were held by a Republican-appointed judge. Thus, Biden is positioned for much less impact than Trump–but it’ll be worse if he leaves any of these seats for Mitch McConnell.
What to do the rest of the year?
In a nutshell–get a move on. Time is dwindling fast. And focus on circuit, far more than district, judges. Circuit judges are much more consequential, and much harder to get through a McConnell Senate.
At a minimum, Schumer should file cloture this week on 5 circuit nominees: J. Michelle Childs (DC), John Z. Lee (7th), Salvador Mendoza (9th), Sarah Merriam (2nd), and Lara Montecalvo (1st). They’ve been approved by committee and just need full Senate votes now. While Mathis might have trouble, none of these five will. They’ll be confirmed whenever Schumer wants them to be, and Childs in particular will be an easy confirmation. (He’d have been better off voting on her than holding a failed vote on a Labor Department nominee when VP Harris wasn’t there to break a tie.)
If the Senate votes for cloture on these nominees this week, they could probably hold a confirmation vote for Judge Childs as well this week. If the GOP would agree to waive the debate time for any circuit nominee, it’d be her. At a minimum, it’d tee up confirmation votes the instant the Senate returns from recess (to be frank, Schumer ought to cancel or shorten the recess).
[EDIT, July 19th — J. Michelle Childs has been confirmed, finally, but Schumer has still not teed up votes on Lee, Mendoza, Merriam, or Montecalvo. Even though Leahy is absent, these four are likely to receive votes from Collins/Murkowski/Graham, so Leahy doesn’t need to be there. Schumer really ought to file cloture and hold that vote this week, allowing them to be confirmed next week.]
And more broadly, Schumer should stop waiting months on end to bring up a nominee for a vote, once he or she has been approved by committee. When the committee deadlocked on Ketanji Brown Jackson, Schumer filed a discharge motion and cloture motion immediately, setting up a confirmation vote a couple days later. That’s the kind of urgency he needs to start moving with on every judicial nomination, especially circuit ones.
Biden needs to hurry up and nominate people for the 11 nominee-less circuit vacancies, too. Bush was known to nominate 11 in one fell swoop–so can Biden. And any nominees Biden announces after the end of this month will be very difficult to confirm by the end of the year.
And Democrats may not even have until the end of the year. The Senate is scheduled for a monthlong recess in August (which Schumer should at least shorten), then will be taking most of October off to campaign for reelection. And what happens in a lame-duck November/December session, if Democrats lose the Senate? Is it all that difficult to imagine Manchin or Sinema or both saying “lame-duck confirmations are out of order since the voters rejected our party” and blocking any and all nominees? To be safe, Democrats need to think of the end of September as their deadline for confirming judges, especially circuit ones. If they want to bank on a lame-duck session for confirmations, save district judges for that–they’d be easier to get through. (This was done in 2014 and 2018 — many, many district judges were confirmed during the lame-duck sessions. Few circuit judges were, though. You’d have to go back to 2010 to find a lame-duck where a significant number of circuit judges were confirmed. Worth noting is that Manchin was a senator for all of these and made no objections then.)
Biden, then, should announce a bunch more circuit nominees this week and next. And the number one priority for selecting them should be–who can get confirmed quickly and smoothly? Time is of the essence, and a 60-something conventional Dem (if it comes to that) is better than a 40-something Federalist Society hack. (Best option is probably to promote district judges to circuits. They tend to be less controversial and easier to vet. Even if it leaves behind some district seats, that’s worth it to fill the circuit vacancies.)
Also of note–which circuit judges to prioritize? The top three should definitely be J. Michelle Childs, Florence Pan, and Brad Garcia, Biden’s three DC Circuit nominees. The DC Circuit, as mentioned, is the second-most powerful court in the nation, and is also a breeding ground for future Supreme Court justices–Clarence Thomas, Brett Kavanaugh, and John Roberts all served on that court. So did Ruth Bader Ginsburg, Antonin Scalia, and Ketanji Brown Jackson, not to mention Robert Bork. Securing a 7–4 Democratic majority on that court is very important. (And again, Judge Childs could be confirmed this week. All Schumer needs to do is bring her up for a vote. When Pan and Garcia have their committee votes, probably some time in July, Schumer should file cloture and schedule full Senate votes right away for them, jumping the queue if necessary — those seats are too significant to risk leaving for McConnell.)
Wrapping Up
To be frank, on a related subject, what Democrats ought to do is expand the Supreme Court. Either that or let Brett Kavanaugh and Amy Coney Barrett govern the country for a generation or more. They may even adopt the “independent state legislature doctrine,” a radical idea that says state courts (and in some cases, state governors too) have no power whatsoever over election laws and procedures. Only the (heavily gerrymandered) Republican-controlled state legislatures have a say. That would make it much easier for a legislature to toss out ballots and otherwise overturn election results that they don’t like. Mark Joseph Stern wrote about this in Slate, ripping Brett Kavanaugh for endorsing the idea (along with Neil Gorsuch, Samuel Alito, and Clarence Thomas), and including the passage:
Perhaps Kavanaugh is planting his flag now, proclaiming that he won’t strike compromises for the sake of the court’s legitimacy; to the contrary, he’ll toss fuel on the fire, confident Democrats are too cowardly to retaliate.
As we are seeing, Kavanaugh had/has good reason to be confident of that. He and the others (Thomas/Alito/Gorsuch/Barrett) know they can do whatever the heck they want. Democrats have been clear they will not stand in the way. (And very much related:)
It’s hard to imagine that Alito and Thomas aren’t the two justices Eastman meant. And there’s good reason to think he was right — especially about Thomas.
But that aside — filling circuit judgeships when judges retire/take senior status is a far easier task than expanding the courts, and for the past few months, Democrats have been failing at that too. It’s not too late to fix that — but the clock is ticking, and it will be too late in a few months. Mitch McConnell’s motto was “leave no vacancy behind,” and he very nearly succeeded; Biden inherited only two circuit vacancies from Trump. But he and Schumer are on pace to leave a lot more for McConnell. Senate Democrats need to start this week moving circuit nominees. And Biden needs to nominate a bunch more. As Lynne Thigpen (as the Chief) would say at the start of every Carmen Sandiego episode: “Now get going!”
