What should we expect of Biden when it comes to the judiciary?

The new administration is borrowing from Trump’s playbook, not Obama’s.

Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.

Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.

Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden.

Biden has also instituted a commission to explore judicial reforms. Some reforms may well be worth exploring, and it is important that the commission’s membership is at least nominally bipartisan. But the mere existence of the commission opens the door to radical progressive ideas like court-packing, and even commentators on the left have warned that the commission must act with extreme care to avoid being viewed as simply a partisan tool.

To everyone’s relief, Biden’s public statements about the judiciary have been far less aggressive and maniacal than Trump’s. We have been spared the tweets about “Trump judges and Obama judges” and the personal attacks on individual jurists. But Biden does not have to adopt Trump’s style to achieve an effect similar ot his predecessor. And from the perspective of the judiciary, the first twenty days of the Biden White House has felt very similar to the Trump Era, in which the judiciary was treated as the ideological toy of an increasingly powerful executive.

The parallels to Trump are apt because the man Biden worked with for eight years, Barack Obama, was curiously uninterested in the federal courts as an institution for the bulk of his presidency. Obama was very slow to fill lower judicial vacancies during his first two years, despite an overwhelming Senate majority. Most of his attention — when he gave it — was directed to the Supreme Court, where he expended heavy political capital on filling two vacancies and ignited a mini-furor with his attack on the Court’s Citizens United decision at the 2010 State of the Union address.

The shift in approach from Obama to Biden is less the result of an ideological difference between the two men, and more about the changing nature of presidential power and the increasing demands coming from Biden’s own progressive wing. The last two administrations, in particular, have vastly expanded the reach of presidential power and influence. Obama utilized executive orders to accomplish policy goals when the legislative process was deemed too hard or too slow. Trump brought that same approach to the White House, and added his own glosses of dominating the news cycle at all costs, and aligning judicial nominations nearly perfectly with Federalist Society membership. Biden may be temperamentally different than both men, but he has absorbed their lessons. Judicial nominees will have to show progressive bona fides, and the new President will not be afraid to use executive orders or media to accomplish his goals.

And unlike Obama or Trump, Biden brings a long history of involvement — some might say meddling — with the Third Branch. Biden’s questioning of Supreme Court nominees Robert Bork and Clarence Thomas as Chairman of the Senate Judiciary Committee brought him into national consciousness in the late 1980s and early 1990s. At around the same time, Biden sponsored the Civil Justice Reform Act, a major piece of legislation that simultaneously increased transparency in the federal courts and imposed upon the court system a variety of administrative responsibilities. Biden has always felt comfortable engaging with issues concerning the judiciary. It is in his wheelhouse, and it is hard to imagine that the courts will not remain an area of high interest for the new President. 

The natural reaction for the federal judiciary, especially coming off an exhausting four years of Trump, might well be to lay low. And indeed, it seems to be in the Chief Justice’s DNA to avoid the public spotlight as much as possible. But the federal courts should keep a keen eye on their own interests, and should not be afraid to step in if the new administration’s policies risk undermining judicial legitimacy. Put differently, a muscular judiciary should stand up for its own interests in the public arena. The courts should assume that the public is interested and educable about the work of the judiciary, and should be assertive about providing that education. If the courts foster public sentiment that they are trustworthy and indispensable, legitimacy and necessary resources will come. But if the courts allow others to define their mission and character — if the courts are seen as silent, clositered, and opaque — misunderstandings and crises of legitimacy are sure to follow.

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