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Biden’s diverse first judicial picks put a Black woman on the path for the Supreme Court

President Biden speaks during an event at the White House complex on Monday.
President Biden speaks during an event in the South Court auditorium at the White House complex on Monday.
(Evan Vucci / Associated Press )

President Biden announced his first slate of judicial nominees Tuesday, moving quickly to put a diverse cast on the judiciary and placing a 50-year-old federal judge in position to potentially become the first Black woman chosen for the U.S. Supreme Court.

The 11 nominees contrasted sharply with those appointed by former President Trump, who were overwhelmingly white men.

All three of Biden’s initial nominees to the federal appeals courts, the second-highest tier in the judicial system, are Black women. The nominees for federal district court posts include people who, if confirmed, would become the first Muslim federal judge and the first woman of color to serve on the federal bench in Maryland, the White House said. Four of the 11 are of Asian or Pacific Islander descent.

The nominees are the first of what the White House expects will be a “steady drumbeat” of judicial nominations this year, said a senior White House official who briefed reporters on the nominations.

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In a statement, Biden referred to his picks as a “trailblazing slate of nominees” drawn from “the very best and brightest minds of the American legal profession.”

“Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience and perspective that makes our nation strong,” he said.

The Biden nominee likely to attract the most attention, especially in the Senate, which will consider their confirmations this spring, is Judge Ketanji Brown Jackson, currently a federal district judge in Washington, D.C. Biden has nominated her to serve on the D.C. Circuit federal court of appeals. That court is often tagged as the second-most influential in the country because of the many high-profile government-related cases that land on its docket.

More pertinent in Jackson’s case, it has often served as a springboard for the Supreme Court. Three of the current nine justices — Chief Justice John G. Roberts Jr., and Justices Clarence Thomas and Brett M. Kavanaugh, served on the D.C. Circuit before being nominated to the Supreme Court. So did the late Justices Ruth Bader Ginsburg and Antonin Scalia.

Jackson, a well-regarded district judge, has often been mentioned as a potential Supreme Court nominee in a Democratic administration. That speculation heightened during the presidential campaign when Biden promised to name a Black woman to the high court.

White House officials were quick to note that naming 11 judicial nominees by the end of March put Biden ahead of the pace set by his predecessors. White House Chief of Staff Ron Klain tweeted Tuesday morning that in their first 100 days, President Obama made three nominations and Trump two, while neither President Clinton nor President George W. Bush made any. Biden was at “11, with 30+ days to go,” Klain wrote.

The president served 17 years as chairman or the ranking Democrat on the Senate Judiciary Committee, which handles judicial nominations, giving him extensive experience with the process, the senior White House official noted; Klain for a time was the committee’s chief counsel.

In addition to racial and ethnic diversity, Biden has been keen to break away from the pattern of judges being drawn disproportionately from a small range of professional backgrounds — especially former prosecutors and partners at large corporate law firms, the senior official noted. Four of the current nominees, including Jackson, worked as public defenders, who represent those who cannot afford to pay for their own lawyers.

“Public defenders, in particular, occupy a critical space in our judicial system,” the official said, speaking under ground rules that don’t allow use of names. “Our criminal justice system can’t function without talented individuals on both sides,” the official said, and having them as judges “is as important as having individuals who represented the government.” Lawyers who have handled civil rights cases are also a priority, the official said.

During Trump’s four years, Senate Republican leader Mitch McConnell of Kentucky led a concerted drive to fill every available judicial vacancy with conservative nominees, often relatively young judges whose lifetime appointments to the bench could last decades. Trump ended up naming 234 federal judges, including 54 to the courts of appeals, the second most in a four-year term. Partly as a result, several appeals courts now have strong conservative majorities.

Democratic activists have been eager for Biden to begin quickly making his own appointments to redress what they see as an improper skew in the judiciary. Many of them fretted during both Obama’s and Clinton’s tenures that judicial vacancies were too low a priority.

Biden’s moves drew praise from activist groups. It’s “a welcome shift to see this level of prioritization of judges,” said Brian Fallon, the executive director of Demand Justice, which was formed to press for progressive judges. Jackson “and the other public defenders and civil rights lawyers in this group are exactly the kind of judges we need to rebalance our courts,” he said in a statement.

Because many judges appointed by Democrats held off on retiring while Trump was in office, Biden currently has 72 vacancies to fill, and an additional 28 judges have indicated they plan to step down this year. Several of the appeals courts, however, almost certainly will retain a conservative majority well into the next presidential term.

The pace of district court nominations depends heavily on senators. The White House largely defers to Democratic senators’ recommendations for vacancies in their states. California currently has 18 federal judicial vacancies.

On the Supreme Court, where Republican appointees have a 6-3 majority, Biden’s first chance to fill a seat could come if Justice Stephen G. Breyer, 82, steps down. It’s widely expected that he likely will do so either at the end of the current term, in June, or next year to ensure that Biden can appoint his successor while Democrats control the Senate.

Many Democratic activists were devastated last year when Ginsburg’s death weeks before the election allowed Trump to name her replacement, Justice Amy Coney Barrett, and a Republican-controlled Senate quickly confirmed her.

Breyer, a politically experienced justice who worked for seven years earlier in his career as a top aide to Sen. Edward M. Kennedy of Massachusetts on the Judiciary Committee, and was appointed in 1994 by President Clinton, is unlikely to let a similar scenario play out in his case.

Jackson worked as a law clerk to Breyer after graduating from law school, part of a resume that fits what is, at this point, the standard profile of a Supreme Court justice — graduation from an elite law school (Harvard in her case), judicial clerkships, and, if confirmed now, prior service on an appeals court. She also served as vice chair of the U.S. Sentencing Commission and has won praise in legal circles for the quality of her written opinions.

Indeed, to the extent that some Democrats have voiced reservations about Jackson’s potential candidacy, the argument has ironically been that she has too many traditional qualifications. Some Democrats, including Biden’s ally Rep. James E. Clyburn of South Carolina, have suggested the president should look for a nominee who would break the mold of Ivy League graduates into which almost all the current justices fit.

Biden’s other two appeals court nominees were Candace Jackson-Akiwumi, a litigator and former federal public defender in Chicago, for the 7th Circuit, based in that city, and Tiffany Cunningham, for the Federal Circuit, which handles claims against the government. The 7th Circuit has not had a Black judge since 2017; Trump appointed four white judges to fill vacancies on it.

In addition to the three appeals court nominees, the slate includes nominees for federal district court judgeships in New Mexico, Colorado, Maryland, New Jersey and D.C., and a nominee for the D.C. Superior Court, the local trial bench in Washington.


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