The Biden administration has pledged a laser-like focus on the judiciary in the coming months, vowing to not only prioritize nominations but also cast a wide net in its search for potential appointees.
It is a welcome development for progressives seeking to optimize the thin Democratic majority in the Senate and quickly regain ground lost after former President Donald Trump placed more than 200 appointees in the courts — including three Supreme Court justices — during his tenure. Democrats are flooding the White House with names, highlighting those with professional and demographic diversity.
In the coming weeks, President Joe Biden is expected to put forward a list for seats on federal appeals courts, including the vacancy left by newly confirmed Attorney General Merrick Garland, who sat on the US Court of Appeals for the DC Circuit.
As things stand, there are currently 69 eligible vacancies in various levels of the federal court system and 27 that will occur down the road as judges have announced their intent to retire. And the White House is almost assuredly keeping an eye on the seat of Justice Stephen Breyer, should he decide to step down this term and give the President his first chance to fill a Supreme Court seat.
Although the administration is young, veterans of the process know that time is of the essence.
Scouring a nominee’s record takes effort, and the necessary coordination between the political branches can face unexpected roadblocks. Officials are well aware that the window, where the White House and the Senate are from the same party, could be narrow. The 50-50 Senate, with Vice President Kamala Harris as the tiebreaker, also gives Democrats zero margin for error if there’s a particularly controversial nominee.
What is unusual about the Biden White House is the number of officials with a deep knowledge and vast experience of the process.
Biden, presided over the Senate Judiciary Committee for years — including during the fiery confirmation hearing for Justice Clarence Thomas. Harris also served on the committee when she was in the Senate. But White House chief of staff Ron Klain is the rare individual who has served in all three branches, and has a passion for the courts. He worked in the White House counsel’s office in his early days and served as chief counsel to the Senate Judiciary Committee as well as serving as a law clerk for Justice Byron White, for the court’s 1987 and 1988 terms.
Even before she was officially in her job as White House counsel, Dana Remus sent a letter to the Hill back in December making clear that officials are looking at the issue through a new lens seeking professional diversity.
Gone is an emphasis on “Big Law” candidates with a corporate background for district court seats. Instead, Remus pinpointed those who have been “historically underrepresented” such as public defenders, civil rights and legal aid attorneys.
Biden, Remus wrote, “is eager to nominate individuals who reflect the best of America and who look like America.”
The calculations will change for district, appellate and Supreme Court seats but the strategy suggests that a paper trail of judicial opinions is not a top priority.
Senate Judiciary Chairman Dick Durbin supports the White House’s vision, a committee aide said.
“After four years of Republican rubber-stamping of Trump judges, Chair Durbin has made clear that we need to restore balance to the federal judiciary,” the person said. “Building a more demographically and professionally diverse bench will be a top priority.”
For lower court seats, Trump did sometimes put forward nominees who were young and without experience, but they almost always had strong supporters who could vouch for them.
Justin Walker, for example, was placed on the US Court of Appeals for the District of Columbia at 37 years old, a year or so after he’d won a seat on the District Court. But Walker was a protégé of then-Senate Majority Leader Mitch McConnell.
Trump’s Supreme Court lists, on the other hand, were made up of known quantities — almost every individual hailed from an appellate court with a number of opinions. That’s because conservatives felt past Republican presidents squandered lifetime appointments with poorly vetted candidates.
A prime example is retired Justice David Souter, nominated to the bench by George H.W. Bush who became a consistent liberal vote until he retired. Conservatives who are linked to groups like the Federalist Society and the Judicial Crisis Network had an unofficial motto: “no more Souters.”
Biden’s emphasis on professional diversity opens the door to fresh voices to be sure, but also may leave himself vulnerable to the possibility of surprises on the bench.
Chris Kang, general counsel for the progressive group Demand Justice, dismisses the need for a candidate to have a so-called proven track record consisting of a trail of judicial opinions.
“I think that if a lawyer has dedicated her career to justice and equality — whether it’s as a civil rights lawyer, public defender, labor lawyer — I am confident she will bring a much-needed perspective and balance to the bench,” he said. Notably, Paige Herwig, who serves as senior counsel in the White House Counsel’s Office, was previously a deputy chief counsel for Demand Justice.
Nan Aron of the Alliance for Justice, a veteran of the judicial confirmation wars, agrees. She says that as long as lawyers have a “demonstrated commitment to equal justice” she is not worried.
According to one source, the White House is in contact with progressive public interest groups seeking recommendations, and the groups — which have fractured in the past over nominees — are coordinating with each other in an effort to help the process move forward smoothly. But the conversation is one-sided, as White House officials have been mum so far about real contenders.
Filling the appeals court seats
The most pressing upcoming nominations will be for the federal appeals court seats, including Garland’s on the DC-based appeals court that is often considered a stepping stone to the Supreme Court.
A top candidate for the job is Judge Ketanji Brown Jackson, who sits on the US District Court for the District of Columbia. Jackson may check all the boxes for Biden. To be sure, she has the glittering education with a degree from Harvard College and Harvard Law. She also served as an Assistant Federal Public Defender as well as the Vice Chair and Commissioner on the United States Sentencing Commission. She did stints in Big Law firms to help support her family and gave an unusual speech at the University of Georgia School of Law in 2017 on a topic that underlines her particular story.
Judge Ketanji Brown Jackson
It was called “Reflections on my journey as a mother and a judge.” Her talk illustrated how hard it is for mothers to serve in law firms which are often the stepping stones to judicial appointments. “I don’t think it is possible to overstate the degree of difficulty that many young women, and especially new mothers, face in the law firm context,” she said. She noted that the hours are long and there is little control over the schedule which is “constantly in conflict with the needs of your children and your family.”
And in 2016, after the death of Justice Antonin Scalia, she was approached by her then-11-year-old daughter who wanted to know whether she was applying for the vacant Supreme Court seat. Her daughter, according to Jackson, decided to pen a letter to then-President Barack Obama to tell him she believed that her mother should be added to the list because she would be an “excellent fit” for the job in part because “she never breaks a promise to anyone.”
In the speech, Jackson said that the letter gave her a glimpse of her “professional and personal life combined” and that she said it made her feel as if she and her husband were “well on our way to achieving success in both worlds.” She is 50 years old and served as a clerk for Breyer. She may be best known for her decision in 2019 holding that Trump’s former White House counsel Don McGahn must testify to the House of Representatives in its impeachment probe.
Judge J. Michelle Childs
Another potential nominee is Judge J. Michelle Childs of the US District Court for the District of South Carolina, who The New York Times reported is being pushed by South Carolina Democratic Rep. James Clyburn, a Biden ally. The paper quoted democrats as being nervous as “Republicans try to repackage themselves as working-class party” and believe that Childs “could send a message about the determination to keep Democrats true to their blue-collar roots.”
Unlike eight of the nine current Supreme Court justices, Childs did not attend an Ivy League school. Instead, she graduated from the University of South Carolina School of Law. She also served as the deputy director of the South Carolina Department of Labor, Licensing and Regulation, as a Commissioner on the South Carolina Workers’ Compensation Commission and worked in private practice for about a decade. According to an interview she did with her alma mater, Childs served as the first black female partner in a major law firm in the state of South Carolina.
But Childs raises questions, at least for the high court, from some due to the fact that she is 54 years old, which might make her a better candidate for an appeals court.
Another contender, potentially for solicitor general — the lawyer who argues cases in front of the Supreme Court representing the government — or even the Supreme Court if a vacancy arises is Leondra Kruger. Kruger is now 44 and she was the youngest person on the California Supreme Court nominated by then-Gov. Jerry Brown in 2014. Biden vowed during the campaign to name a black woman if he had the chance to fill a vacancy on the high court.
California Supreme Court Justice Leondra Kruger
Kruger is intimately familiar with the court having worked as a clerk for the late Justice John Paul Stevens and served as acting deputy solicitor general in the Obama administration. She was a political deputy under then Acting Solicitor General Neal Katyal, and graduated from Harvard College and Yale Law School.
An outside the box candidate for the judiciary is Sherrilyn Ifill, the President to the NAACP Legal Defense and Educational Fund. She has worked for the ACLU and taught law at the University of Maryland School of Law in Baltimore. In 2007, she wrote a book called “On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century. But Ifill is 58 years old, which may not work in her favor — at least for the high court.
Since Biden vowed to name a black woman on the Supreme Court, names have popped up for potential lower court seats, including Melissa Murray of New York University School of Law, Leslie Abrams Gardner, a district court judge in Georgia, Suzette Malveaux of University of Colorado Boulder and Cheri Beasley of the Supreme Court of North Carolina.
Dale Ho, the director of the ACLU’s Voting Rights Project, is a potential pick supported by Demand Justice and others. Before the Supreme Court he challenged the exclusion of undocumented immigrants from the population count used to apportion the House of Representatives. He also worked to block the Trump administration from adding a citizenship question to the 2020 census. He was a star of the documentary the “Fight” which followed ACLU lawyers as they fought Trump policies; he was pictured practicing his opening statement before his bathroom mirror wearing his sneakers.
Deepak Gupta could be another choice. He’s the founder of a public interest law firm with a focus on consumer protection and communities injured by corporate or governmental wrongdoing. He served as senior counsel for litigation and enforcement strategy at the Consumer Financial Protection Bureau.
Conservative groups like the Judicial Crisis Network, who pushed for Trump’s nominees find themselves playing defense now. They also question the funding used by progressive public interest groups, just as progressives questioned some conservative funding when they were in the minority.
“The President should appoint judges who have demonstrated excellence and a record of putting the Constitution ahead of any political agenda,” Carrie Severino of the Judicial Crisis Network said in a statement. “Instead, he seems to be designing the judicial selection process around the demands of liberal dark money groups he needs to pay back.”
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