When President Joe Biden took office, nearly 52% of all federal judgeships were held by Republican appointees. This was in large part thanks to his predecessor, who, in just four years in office, was able to fill nearly 30% of the federal judiciary. For perspective, only 38% of all current federal judges were appointed by President Barack Obama during his eight years, six of which had the Democrats in control of the Senate. Donald Trump, guided by then-Senate Majority Leader Mitch McConnell, also flipped at least three previously majority liberal circuit courts to majority conservative.
“We’ve seen a huge conservative shift. A lot of these judges are very young, and they’ll be there for a long time,” Joshua Fischman, a law professor at the University of Virginia, told the New York Times in December. In an analysis of thousands of federal court decisions, the Times found that Trump-appointed judges were on average more partisan than the rest of the judiciary.
With the courts stacked with Republican appointees from top to bottom, progressive groups are now demanding that Biden and Senate Democrats apply the same judicial hardball as Trump and McConnell. Along with moving quickly to fill seats, the groups want Biden to focus on the quality of his nominees, stressing the importance of appointing jurists who have a connection to progressive legal work.
“For years, presidents of both parties, along with the senators who advise on their judicial selections, have favored a certain kind of résumé, with corporate lawyers and prosecutors dominating the ranks,” reads the website of progressive court reform group Demand Justice. “Unfortunately, public interest lawyers, plaintiffs’ lawyers, public defenders and progressive academics have been few and far between.”
Lack of diversity on the bench, in more ways than one
The journey to a federal judgeship, especially at the appeals or circuit court level, often follows a quite narrow path: attend a top law school (especially Harvard or Yale); clerk for a federal judge and maybe at the Supreme Court; work as a prosecutor or corporate lawyer for a while, and make good relationships with the political party of your choice. For lawyers working in public interest jobs—civil rights, labor law, consumer protection, indigent defense—there isn’t much of a path at all. According to the progressive legal organization People’s Parity Project (PPP), only one current circuit court judge spent a majority of their career in legal aid or public defense. In contrast, a PPP analysis found that 60% of active circuit judges were partners at corporate law firms.
To combat the domination of the judiciary by corporate lawyers, the group launched its Unrig the Courts project, which includes a database of dozens of public interest lawyers—many of whom are women, people of color or both—ripe for a circuit court appointment.
PPP has also joined with groups like Take Back the Court, Indivisible, and Demand Justice to pressure the Biden administration to expand the federal judiciary, including the Supreme Court. While Biden and other Democrats have voiced opposition to court packing, the president pledged during his campaign to appoint a Black woman to the Supreme Court.
Change starts in obscure Senate advisory committees
While presidents appoint judges, they make their choices based on the recommendations of senators. In a report this summer, the People’s Policy Project (“3P,”—a left-wing think tank started by socialist policy wonk Matt Bruenig, not to be confused with PPP, mentioned above) analyzed the process by which Democratic senators find judicial candidates, most of whom rely on their own committees of lawyers. The report, co-authored by Bruenig and researcher Emma Steiner, went on to show an underlying bias toward prosecutors and corporate lawyers on these committees, which may explain the similar bent in the courts.
Bruenig and Steiner find that nearly half of the Senate committee members whose names are publicly available have spent their careers in either corporate law, law enforcement, or both, which the report claims is a gross overrepresentation of both specialties compared to the legal profession as a whole. The report also notes the high number of donors and lack of public interest lawyers, arguing that the committee system should be scrapped.
“It is clear from looking at the data that the process of federal judicial recommendations is broken,” write Bruenig and Steiner. “Instead of ensuring that competent, diverse voices make it to the bench, it is a system of rarified glad-handing and patronage, in which politicians can reward high donors and powerful attorneys by giving them a say in numerous lifetime appointments.”
The report advocates that the president establish executive commissions for each of the 13 federal circuits to provide judicial recommendations. These commissioners, the report states, would be appointed by the president and should meet gender and diversity quotas, while largely coming from backgrounds in civil rights, union-side labor law, environmental law, and other public interest practices. As an example, Bruenig and Steiner cite President Jimmy Carter, who created a similar commission system via executive order.
The “Blue Slip” hurdle
Once a judge is nominated, they go through Senate confirmation, including a hearing, a committee vote and a full Senate vote, which is not subject to the filibuster rule. But in this process, a senator from the nominee’s home state holds a special veto power known as the blue slip, which can be used to prevent the confirmation process from advancing.
In 2017, Republican Judiciary Committee Chairman Sen. Charles Grassley revoked the blue slip rule for circuit court nominees, but kept it in place for district court judges. Sen. Dick Durbin, the new Democratic chairman, has chosen to follow suit, drawing criticism from progressives fearful of GOP obstructionism.
“You’re ending up with two tracks of justice, where Americans living in a state represented by a Republican senator might have very different judges than one who lives in a state represented by Democratic home-state senators," Christopher Kang, co-founder of Demand Justice, told Politico last week. Kang wants Durbin to throw out the blue slip system altogether.
How Democrats choose to handle judges is a vital issue on its own, but it’s also a small piece in a larger battle within the party between progressives like Sen. Bernie Sanders, who wants to wield power, and moderates, like Sen. Joe Manchin, who wants to maintain Senate norms and seek bipartisan support. Gutting the blue slip system would be akin to nuking the filibuster, as it would remove a point of leverage for individual senators. Likewise, appointing a raft of progressive lawyers to the courts is a judicial equivalent of raising the minimum wage in COVID relief bills: Both will only guarantee straight party-line votes.
One month into the Biden administration, it’s hard to tell who’s posturing, who’s serious, and whose side the president and the party leadership will take. But with bare majorities in the House and Senate, the clock is ticking furiously, and those Trump-appointed judges get to stick around for life.
