https://news.bloomberglaw.com/us-law-week/biden-builds-judicial-legacy-with-diversified-federal-courts

President Joe Biden and Senate Majority Leader Chuck Schumer are transforming the federal courts at a blistering pace and creating an unrivaled legacy of diversity that will redefine the federal bench for a generation.

Of the 97 judges confirmed by the Senate in the last two years, three quarters of them are women, and nearly half of the appointees — including Supreme Court Justice Ketanji Brown Jackson — are women of color.

U.S. Vice President Kamala Harris, from left, Judge Ketanji Brown Jackson, and U.S. President Joe Biden depart after a ceremony on the South Lawn of the White House in Washington, D.C., U.S., on Friday, April 8, 2022. Jackson was confirmed yesterday to the U.S. Supreme Court, making history as the first Black woman to ever join its ranks while leaving the ideological balance on the nation’s highest court unchanged.

Photographer: Yuri Gripas/Abaca/Bloomberg

And while most presidents pick from a pool of existing judges, government attorneys and lawyers in private practice, Biden has cast a wider net. About one-third of Biden’s confirmed judges have experience as public defenders and a dozen are former civil rights lawyers, according to the liberal group Alliance for Justice.

That means that there are more federal judges who have seen the challenges in the court system for people with low incomes or who have experienced civil-rights or voting-rights violations, said Lisa Cylar Barrett, director of policy at the NAACP Legal Defense Fund.

“It’s a perspective that has been sorely lacking and is much needed on the federal judiciary,” Barrett said.

By the Numbers

The 97 judges confirmed by the Senate in the last two years surpasses the 83 confirmed by this point in former President Donald Trump’s term. It nearly matches the 100 judges confirmed during President George W. Bush’s first two years in the Oval Office.

So far, the Senate has confirmed Jackson, as well as 28 appellate court justices and 68 district court judges during Biden’s presidency.

Just five of Biden’s appellate and district court judges are White men — 5% of the total so far. By comparison, 147 of Trump’s nominees over his full four years in office were White males, or 64% of those he elevated.

“What’s most striking to me is the paucity of white males,” said Russell Wheeler, a senior fellow at the Brookings Institution who has long tracked federal court confirmations. “The number of White males could be counted on one hand, which is so different than all the other presidents.”

Aside from Jackson’s historic ascension to the Supreme Court, another 11 Black women have moved onto the appellate courts. Up until the Biden administration, only eight Black women have ever served on the circuit courts.

Outright Majority

The drive to reshape the judiciary will take on more urgency in the next session of Congress, when Republicans take power in the House and legislation gets gridlocked.

Senate Democrats now have a 50-50 majority but that shifts to 51-49 in January, giving them an outright majority on committees, enabling Judiciary Chair Dick Durbin to move nominees to the floor with more haste.

Democrats will continue to benefit from a rule change under former Democratic Majority Leader Harry Reid, who unilaterally reduced the number of votes needed to advance appellate and district court nominees to 51 votes instead of 60. In 2017, then-Majority Leader Mitch McConnell lowered the threshold for Supreme Court nominees to 51.

Mike Davis, founder and president of the conservative Article III Project, said Democrats and their allies are less interested in bringing more diversity to the courts than they are in selecting jurists who they believe will issue rulings more in line with their values.

“When Democrats crow about diversity, that’s code for liberal judicial activists,” Davis said. He said Democrats have been quick to oppose female and minority judicial nominees of GOP presidents if they think they could issue conservative opinions.

High Court

Biden’s push to remake the federal bench comes without the running start afforded to Trump by Senate Republicans who held up President Barack Obama’s court nominees during his last year in office.

That left a Supreme Court position after Justice Antonin Scalia died, along with 86 district court vacancies and 17 circuit court vacancies for Trump to fill when he took office in January 2017.

Trump later filled two other Supreme Court vacancies after Justice Anthony Kennedy retired and Justice Ruth Bader Ginsburg died, a level of high-court turnover Biden may never experience.

After Trump’s picks of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were confirmed, the Supreme Court had a 6-3 conservative majority. That set the stage for more right-leaning rulings like this year’s decision overturning the constitutional right to an abortion.

Trump also made big inroads with the appellate courts, shifting the balance of power on the Florida-based 11th Circuit, the New York-based 2nd Circuit and the Philadelphia-based 3rd Circuit. All three had a GOP majority when he left office.

Circuit courts have significant clout, because while the Supreme Court decides fewer than 70 cases a year, appellate courts resolved just over 47,000 cases for the year ending March 31, 2022, according to the Administrative Office of the US Courts in Washington.

Biden has moved the Second Circuit back to a slight edge of Democratic nominees. Davis predicted that with a 51st Senate seat at their disposal, Biden and Schumer could also turn back the other two appellate courts.

“President Trump’s biggest accomplishment of his first term was the transformation of the Supreme Court and lower federal courts,” Davis said. “And with Democrats now controlling the White House and the Senate, President Biden is going to erase President Trump’s gains in the federal circuit courts over the next two years.”

But Biden faces some challenges. He’s avoided Senate traditions that can let Republicans slow down or hold nominees they don’t like by focusing almost entirely on states with two Democratic senators.

Next year, he has to fill vacancies elsewhere. There’s a also a lack of vacancies on federal courts — just nine on circuit courts right now, according to the Administrative Office of the US Courts.

And while two dozen GOP appellate court appointees will be eligible to leave active status on Jan. 1, Wheeler said, many of them might want to stick around until a future Republican president picks their successor.

To contact the reporter on this story:
Laura Litvan in Washington at llitvan@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Megan Scully, Elizabeth Wasserman

© 2022 Bloomberg L.P. All rights reserved. Used with permission.

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