Judicial vacancies open door for Biden to offset Trump's legacy in court system
President Joe Biden 's administration announced its 10th round of judicial nominees last week in an aim to fill vacancies left by a pair of retiring judges from the 2nd and 6th Courts of Appeals, continuing a fast-paced trend of nominations to offset the judicial legacy left by his predecessor.
Across the federal court system, a total of 78 vacancies are available for the president to fill as of Nov. 24. The president, along with the support of Senate Majority Leader Chuck Schumer, has already nominated 64 individuals to federal judgeships, with nine confirmations of circuit judges and 19 district judges.
Political pundits see this as Biden's chance to nudge the courts to the left, while the White House has described the president's latest nominations as a continuation of the "promise to ensure that the nation’s courts reflect the diversity."
The president's record-setting pace of confirmations effectively serves as a direct rebuff to former President Donald Trump and former Senate Majority Leader Mitch McConnell's efforts to move the federal judiciary to the right. Trump notably confirmed more than 230 federal judges, including three Supreme Court justices that built the present 6-3 conservative majority on the bench.
An apparent urgency to fill judicial vacancies at a rapid pace is due largely to the Democrats' slim hold on the even 50-50 Senate chamber with the vice presidential tiebreaker, as midterm elections are now less than a year out. Republican lawmakers have touted the 2022 midterm elections as a chance to gain back the House and potentially the Senate, giving Biden only a short window to confirm judges uncontested should the opposing party win back the majority in either chamber.
Dan Goldberg, legal director at the Alliance for Justice, told Bloomberg Law in October he thinks "Democrats are very, very clear in what will happen if McConnell becomes majority leader again in 2023.”
Serving as a Delaware senator for more than three decades and leading the Judiciary Committee from 1987-95, Biden is acutely aware of the power federal judges below the Supreme Court level can have in upholding or striking down key elements of a president's agenda.
"President Biden has spent decades committed to strengthening the federal bench, which is why he continues to move rapidly to fill judicial vacancies," a White House official said.
Biden's COVID-19 vaccine-or-test mandate is the latest initiative to face setbacks due to the makeup of the appellate courts, after a three-judge panel on the 5th Circuit, which is considered the nation's most politically conservative, put a stay on the Occupational Safety and Health Administration emergency temporary standard that was set to apply to workplaces employing more than 100 workers on Jan. 4. The somewhat conservative-leaning 6th Circuit was randomly selected on Nov. 16 to hear petitioners' challenges to the mandate and was largely seen as a positive outcome for proponents against the OSHA ETS.
The standing Senate leadership has been strategic in its approach to judicial selections by mostly choosing states with Democratic senators, making opposition to nominees unlikely. Senate Judiciary Chairman Richard Durbin, an Illinois Democrat, has said processing and advancing nominees are priorities for his committee.
Biden nominated Andre Mathis on Nov. 17 to fill an empty seat on the 6th Circuit and U.S. District Judge Alison Nathan for a seat on the 2nd Circuit. If Mathis is confirmed, he would replace retiring Bernice Bouie Donald, an Obama-appointee who was the first black woman to sit on the Cincinnati-based 6th Circuit.
73% of Biden's judicial selections to date have been women, and 27% are African American. Along with keeping up his commitment to diversity, Biden has nominated 14 civil rights attorneys, 20 public defenders, and five labor lawyers in a counter against the traditional professional backgrounds that have often encompassed past judicial appointments.
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