Five Biden appointees advance to confirmation votes

Five of President Biden’s judicial nominees advanced out of the Senate Judiciary Committee yesterday. Two court of appeals nominees, including D.C. Circuit nominee Ketanji Brown Jackson, passed on narrow majorities. Three dsitrict court nominees sailed through with large majorities.

Judge Jackson won the support of two Republican Senators, Lindsay Graham and John Cornyn, and passed to the full Senate with a final committee vote of 13-9. That someone as accomplished as Jackson received nine “no” votes is a clear sign of our political dysfunction. Senator Chuck Grassley, who voted against Jackson, explained that “unless a circuit court nominee can show me that he or she is affirmatively committed to the constitution as affirmatively understood, I don’t think that he or she should be confirmed.”

One point to Senator Grassley for honesty, but a three-point deduction for damaging partisanship. Yes, the D.C. Circuit has become the most ideological of the circuit courts, and yes, there is reason for the GOP to be concerned about the Democrats’ transparent effort to pack that court and then funnel all federal elections challenges through it. But elections have consequences, and no one should expect that a Biden nominee will be a committed originalist. Grassley’s bright-line rule for appellate nominees places him squarely in the camp of noted Third Branch emasculators Kamala Harris and Mazie Hirono.

Biden tips his hand on the next Supreme Court nominee

Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.

Ketanji Brown JacksonPresident Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees. 

Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the  President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.

Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.  

Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.

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. Continue reading “What should we expect of Biden when it comes to the judiciary?”

Another voice against court packing

With the Biden Administration announcing the formation of a committee to explore reforms to the Supreme Court—including the possibility of adding seats—Democratic political consultant Douglas Schoen offers several words of caution in The Hill for would-be court packers. The key grafs:

Even if Democrats can get rid of the filibuster, packing the Supreme Court on a party line vote would tarnish judicial credibility and would reduce the institution to a partisan tool. Moreover, it would trigger an endless cycle of revenge politics, as each successive party in control would be motivated to add justices to restructure ideological balance on the bench.

The backlash of packing the Supreme Court would be considerable for Democrats, as this move is unpopular with voters. After the confirmation of Barrett, a national survey had found that, by 47 percent to 34 percent, voters think Democrats should refrain from altering the Supreme Court. But most Democrats do want party leaders to add more justices.

So packing the Supreme Court would damage the chances for Biden of achieving his elusive goal of unifying both parties. This would send the message that he is instead interested in fueling the current climate of partisan politics, rather than trying to fix it. It would not only harm his legacy, but would also likely prevent him from being able to pass any meaningful or comprehensive bipartisan legislation in office.

Schoen focuses primarily on the political damage that would be wreaked by court-packing, but the institutional damage to the judiciary would be just as significant. It would dramatically undermine public confidence in the Court through no fault of its own.

Institutions are fragile things. They take generations to build and imbue with legitimacy and confidence, but far less time to destroy. With so many of our political, religious, cultural, and civic institutions already under attack, we should refrain now from opening another wholly unnecessary front.

A new day and a plea for unity

The Dean of my law school, Scott Brown, has an op-ed up at The Hill calling for unity as the United States inaugurates Joe Biden as its 46th President. It’s an important message. Over the past decade-plus, Americans’ disagreements over policies and protocols have devolved into distrust and outright demonization of their neighbors and countrymen. It is a depressing and dangerous condition, but it is reversible.

I am not naive enough to think that unity will be achieved simply with a change in administration. Donald Trump was a symptom of our dysfunction, not a cause of it. But Inauguration Day provides an excellent opportunity for us to look at ourselves and ask what we really want to be. I hope for an America where people do differ on policies and conceptions of the good life, where we are squabbling and passionate and relentless about our convictions, but also where fealty to the core values of our country — among them free speech, due process, equal protection, and respect for the rule of law — provides the unshakeable foundation for good faith arguments about our future.

Regular readers of this blog know that I have sometimes been hard on Joe Biden and Kamala Harris. I will continue to do so when I disagree with their policies and actions. But I will also give them credit whenever it is merited, and I will always wish them well. They are now steering a ship of 330 million people, and it is in the interest of the country — indeed, the entire world — that they succeed. May they find that success today and in the coming years.

Salt Lake City federal courthouse to be named for Orrin Hatch

Congress can still agree on a few things, it seems. A bill to rename the Salt Lake City, Utah federal courthouse after retired Senator Orrin Hatch passed both houses of Congress unanimously this week. The bill has been sent to the President for signature.

Senator Hatch served Utah for 42 years in the Senate, and was a leading voice on the Senate Judiciary Committee. Much of that time overlapped with another old Judicary Committee hand, Joe Biden. It is a fitting tribute to name the Salt Lake City courthouse in his honor.

Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”