President-elect Joe Biden is signalling that he’s ready to move quickly with nominating judges once he’s sworn into office. And he specifically wants Democratic senators to recommend nominees to him who are diverse, not just in terms of race or gender, but professionally ― something progressives have been clamouring for for years.
In a letter obtained by HuffPost, Biden’s incoming White House counsel Dana Remus tells Democratic senators to try to find public defenders and civil rights attorneys in their states who they think would be a good fit for a federal judgeship.
“With respect to U.S. District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life,” reads the December 22 letter.
Biden also wants judicial nominee recommendations for existing district court vacancies “as soon as possible,” said Remus, and no later than Jan. 19 ― a day before Biden is formally sworn in.
As of Wednesday, there are 43 district court vacancies.
Beyond that, the president-elect wants Democratic senators to recommend nominees to him within weeks of any vacancy opening up on a U.S. district court.
“Moving forward, we will request that you forward names to us within 45 days of any new vacancy being announced, so that we can expeditiously consider your recommendations,” she added.
Here’s Remus’ full letter, which urges senators to propose judicial nominees who are also diverse based on race, ethnicity, national origin, gender, sexual orientation, gender identity, religion, veteran status and disability.
A spokesperson for Biden’s transition team did not respond to a request for comment for more details on the judicial nominees Biden plans to put forward once he’s sworn in.
Progressives have long been calling for more diversity in federal court picks, particularly when it comes to a nominee’s professional background. President Donald Trump’s didn’t add much diversity to the courts at all; most of his federal judges are white men with ties to corporate law firms. President Barack Obama put a historic number of women and minorities onto the federal bench. But even he didn’t put forward many people who didn’t have a background in corporate law.
“We face a federal bench that has a striking lack of diversity,” Senator Elizabeth Warren said back in 2014, during an Obama-era event on professional diversity on the courts. “President Obama has supported some notable exceptions but ... the president’s nominees have thus far been largely in line with the prior statistics.”
Chris Kang of Demand Justice, a progressive judicial advocacy group, said the letter reflects “exactly the kind of priorities and processes that we have been pushing for and that will be necessary to rebalance our courts after four years of Trump and McConnell.”
That Biden is emphasising the need for professional diversity in judicial nominees before he’s even sworn in “demonstrates his commitment to build on the historic demographic diversity of President Obama’s judges,” Kang said. “And his clear timeline underscores that judges will be a priority from day one of his administration.”
Of course, Biden’s plan for confirming judges hangs in the balance ahead of Georgia’s Senate runoff elections in January. The outcome of these elections will decide which party controls the Senate for the next two years.
Even if just one of Georgia’s two Republican senators, David Perdue and Kelly Loeffler, holds on to his or her seat, which is likely, Senate Majority Leader Mitch McConnell will remain in charge. That would mean Biden may have to prepare for the kind of unwavering obstruction that Obama faced from McConnell in getting his judicial picks confirmed. For years, Republicans tossed aside Senate rules and traditions to block Obama’s court picks, even noncontroversial nominees they previously supported.
That experience has left some experts skeptical of Biden’s chances of diversifying the courts if the GOP controls the Senate.
“I don’t think McConnell is likely to confirm many of Biden’s nominees at all,” said Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program, recently told HuffPost. “Some people have said that maybe Joe and Mitch would get together, these old buddies, these members of the Senate club are going to work things out. I don’t think that’s going to happen.”
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