Judicial Appointments in 2021: Three Big Questions

I held back on drafting this annual bulletin until after the Georgia runoff so we could know which party will have control of the Senate. Donald Trump managed to hand the Senate over to Democrats by turning the runoff into a referendum on his insane claims about the presidential election. As a result, Republicans will be in a much weaker position to stop soon-to-be President Biden’s nominations from the judiciary.

Here are the big questions as I see them:

1. Will there be another vacancy at the Supreme Court?

Justice Breyer is under great pressure to resign and I think he will succumb to that pressure either this year or next. If Biden replaces him, not much will change in the ideological makeup of the court. In contrast, Biden will have the option to add a fourth liberal judiciary if a vacancy unexpectedly emerges on the conservative side of the court.

Joe Biden has promised that his first candidate for the Supreme Court will be a black woman. The 50:50 Senate means it can’t take many risks. So if he’s looking for a candidate who meets the traditional criteria, front-runners Leondra Kruger, California Supreme Court Justice, and Ketanji Brown Jackson (federal judge) will be a leading candidate for the DC Circuit seat Merrick Garland is leaving). Any candidate would likely have a fairly smooth – if narrow – path to confirmation.

2. Will many new positions be vacant at the federal appeals courts?

There are approximately 40 federal appellate judges appointed by Democratic presidents who are “senior citizens” – that is, who could fully retire or assume senior status and continue to receive their annual salary. (See the list I compiled in November 2019.) I would expect most of those 40 to exercise this option earlier this year.

Donald Trump appointed nine federal appellate judges in the first year of his presidency. Thanks to Trump’s botched races in the Georgia Senate, Biden should be able to double or triple that amount in his freshman year.

3. Will the White House Biden make nominations quickly?

Judicial officer nominations are a priority for the left, Biden’s Chief of Staff Ron Klain is very talented and has extensive judicial verification experience, and the White House Attorney’s office will be filled with talented lawyers. So there is reason enough to expect the White House to quickly make nominations.

The White House faces two obstacles. One is the ideological struggle on the left. For example, some progressives oppose the appointment of corporate lawyers, preferring so-called lawyers and public interest activists. But many of the best qualified candidates will come from Big Law. Ironically, the Democratic takeover of the Senate will exacerbate this problem as the White House will have a harder time telling progressives that it is not nominating a particular candidate because the risk is too great that the candidate will not be confirmed.

The second obstacle is the left’s diversity bean counting. It will be relatively easy for the White House to find different candidates for nomination. However, it will be much more difficult to meet the left’s demands for a poorly defined mix of different candidates. Look for groups that complain that they are underrepresented among the nominees.

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