When President Joe Biden announced his first list of nominees for Justice last week, all media attention turned to his identity politics. All three picks for federal courts were black women. If so, we would also have the first Muslim District Judge, the first Asian American in DC District Court, and Maryland’s first “Woman of Color” District Judge. The White House press release states, “The Bundesbank should reflect the full diversity of the American people.”
This is nothing new. Returning to Jimmy Carter’s focus on “representativeness,” Democratic presidents have touted demographics before most other considerations when it comes to judicial nominations. Carter’s Attorney General Griffin Bell once testified: “Mr. Carter was willing to appoint a black, Hispanic, or female attorney to the federal bank who was found less qualified than a white man as long as the agent was found qualified.” “” The President admitted this in a press conference in December 1978: “If I didn’t need to get Senate confirmation of my appointment, I could tell you flatly that twelve percent of my judge appointments would be black and three percent Spanish-speaking.” and forty percent would be women and so on. “
The next Democratic president, Bill Clinton, expanded that commitment, and Barack Obama went further. However, both would be criticized for appointing judges who are not as legally strong as the Republican candidates they would duel with, which of course is the downside of a demographic focus. Indeed, Obama would have gone further in his judicial affirmative action if the American Bar Association had not warned that many of his candidates would be deemed “unqualified” if he had officially nominated them. Because of this, Biden ended the ABA’s privileged pre-screening role, which was consistent with decades of Republican practice.
An interesting fold in this delicate search for diversity and quality is that many Democratic candidates, including “color judges,” were either prosecutors or corporate attorneys. These experiences make lawyers more moderate and more respectful of law enforcement agencies – not exactly the progressive avatars that the grassroots party demands. Indeed, when Biden was pressured to hand out a list of potential candidates for the Supreme Court during the presidential campaign – he never did because anyone he named would hurt him either with his base or with his swing voters – , the activist group Demand Justice put a 32-name “shortlist”. The list was attacked for its radicalism, and the group later expanded it to 43 names to reflect political realities.
One of the names missing from Demand Justice’s first list was DC District Judge Ketanji Brown Jackson, now Biden’s choice, to fill the DC Circuit opening created by Merrick Garland’s attorney general confirmation. Demand Justice initially left Jackson out because of her corporate experience. This is ironic because although she has a mixed reputation as a judge, with several striking reversals, her ideological belief has never been in doubt. In addition, her high-profile legal career included a two-year tenure as a federal defender.
A security guard walks outside the U.S. Supreme Court building as two supporters of President Trump take photos of each other near the U.S. Capitol on January 7, 2021 in Washington, DC, near the U.S. Capitol. The Supreme Court will meet on Friday to discuss whether to open a case of covert comfort.
Robert Nickelsberg / Getty Images
Two other Biden candidates were also public defenders, two more were also criminal defense lawyers, and another was an Army JAG. So it seems that the exclusion of the ABA pre-screening – the group will still formally evaluate the selection after the announcement – enables non-traditional backgrounds to be taken into account, a step that is long overdue.
Given that the legal profession has leaned to the left for decades, especially at the elite level, Democratic presidents, with or without ABA approval, have long had more room for error than their Republican counterparts. The Republicans are fighting for “no more” [David] Souters “- or John Robertses – Democrats know that in general they will make the decisions they want about expansive federal regulations or progressive social goals. They can afford to focus on identity politics rather than ideology. Why President Trump Didn’t Appoint Many Black Women Judges weren’t racism or misogyny, but there just aren’t a lot of originalists or textualists ticking those demographic boxes.
Biden’s first group of nominees should go under; They are all on their way to courts in DC or states with two Democratic senators, so there are no concerns about blue slip or other political slip. It will for the most part stay that way, as most of the vacancies are in blue states, where Senators refused to play ball with the Trump White House or then majority leader Mitch McConnell. Or where the judges waited for Biden to be elected to announce their resignation.
As of this writing, there are 74 Article III vacancies (seven counties, 65 counties, and two on the Court of International Trade), 23 of which will be announced for later this year. These are significantly fewer opportunities than Trump at this point, so Biden will have a hard time meeting his predecessor’s 234 confirmations – the second best ever after Carter, for whom Congress created 152 new judicial posts as consolation for not having one to fill high court seats for a tenure.
Regardless of how well Biden’s candidates are received in our 50:50 Senate, when 82-year-old Judge Stephen Breyer inevitably retires to avoid Judge Ruth Bader Ginsburg’s fate, the real battle will take place, by someone stripes to be replaced with another jurisdiction. If Trump hadn’t thrown both seats in the Georgia Senate (and thus the Republican majority) with his post-election gimmicks, Breyer would likely stay until halfway through 2022 when the Democrats are faced with a cheap voting card. Now the oldest judiciary no longer has this excuse. So expect the fourth Supreme Court fight in five years this summer.
When that happens, you will hear Judge Jackson’s name even more, as Biden’s promise to raise a black woman narrows the pool of plausible candidates. There are currently only four black judges, the youngest of whom is 70, so Jackson will have the inner lead.
Ilya Shapiro is vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies of Cato, and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.
The views expressed in this article are those of the author.