In four years, President Donald Trump appointed 54 federal circuit judges. That's just one less than President Barack Obama appointed with two terms rather than one. Trump also placed district judges at a faster rate, appointing 177 in four years compared to 272 from Obama in eight.
This fits a narrative in recent decades that Republicans are more aggressive when it comes to appointing judges who match with their right-wing ideology.
Now progressive Democrats are looking to the Biden administration to remedy this disparity.
"I think that the Biden administration has set a tone early on that they're going to make judicial nominations one of their highest priorities," Christopher Kang, who served as deputy White House Counsel under Obama, told Cheddar. "They're talking about not only how quickly they can move but more importantly about the kind of judges they'd like to put on the bench."
Kang is now the co-founder and chief counsel of Demand Justice, one of a network of progressive advocacy groups that are pushing the Biden administration to be more aggressive than past Democratic administrations when it comes to judicial appointments — both in terms of the sheer number of appointments and the ideological bent and legal background of judges.
While judicial appointments usually don't begin until the spring, these advocates are pointing to some early signs that the new president may be following their lead.
Personnel Choices
A foremost indication is that some high-level Biden administration officials were plucked from their ranks.
Paige Herwig, who formerly worked for Demand Justice and as deputy counsel to Senator Dianne Feinstein (D-Calif.), is now working on judicial nominations for the White House Counsel's Office.
Already, her presence is being felt. The administration in February announced that it would not restore the American Bar Association's role as an unofficial gatekeeper in vetting nominations. Progressive advocates had long criticized the group for designating a disproportionate number of women and people of color as "not qualified" under its rating system, a rating that had been at times ignored by previous administrations.
"All of this is in service of one of our broadest goals — the diversification of the judiciary, in terms of making sure that we have considered the most talented nominees from a wide range of personal and professional life experiences," Herwig told The New York Times.
Another appointee to the Office of White House Counsel that progressive advocates are celebrating is Tona Boyd, who served as Senator Cory Booker's (D-N.J.) chief counsel and senior legal advisor and also has a background prosecuting hate crimes and police misconduct.
Kang added that Biden's pick for chief of staff, Ron Klain, also bodes well for their cause. As chief counsel to the Senate Judiciary Committee in the 1990s, Klain helped shepherd President Bill Clinton's nomination of Ruth Bader Ginsburg to the Supreme Court, and also played a role in the contentious confirmation hearing of Justice Clarence Thomas.
"Ron Klain is someone who understands the courts better than maybe any other chief of staff," he said.
Diversifying the Courts
Outside of personnel changes, another sign of Biden's new approach to judicial appointments was a letter sent by White House counsel Dana Remus to the Senate back in December.
The letter asked Democratic senators to recommend candidates who come from different backgrounds.
"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," Remus wrote in the letter.
The Center for American Progress, a liberal think tank, released a report in August showing that 65 percent of circuit court judges had spent most of their careers in private practice, while just 1 percent spent the majority of their careers as public defenders or in legal aid.
"This lack of diversity not only reflects the closed and elitist nature of the federal appellate bench but also represents a barrier to the courts' ability to develop intellectually rich jurisprudence grounded in an awareness of a broad set of individuals' experiences across the country," the report stated.
Judicial Crisis
While diversity is one concern, another is simply filling seats.
"It's critical that we put young, progressive judges on the bench, and that we do so as soon as seats open," said Molly Coleman, executive director of People's Parity Project, another nonprofit progressive advocacy group. "That said, we have a judicial crisis in this country. We do not have enough judges in this country at any level, period."
Congress used to vote to expand the lower courts at least once a decade just to keep up with a growing number of court cases, but that practice came to a halt in the 1990s. Now the courts face a backlog of cases, a situation that the coronavirus pandemic has only complicated.
Coleman said the Biden administration is clearly committing to diversifying federal courts and appointing more judges, but perhaps less committed to systemic judicial reforms, such as expanding either the Supreme Court, a contentious topic of debate during the presidential election, or even the lower courts.
The appointment of Justice Amy Coney Barrett, who was confirmed by the Senate days before the 2020 presidential election, only intensified the debate. Democrats pressed Republicans to wait until the election to fill the Supreme Court vacancy left after the death of Justice Ginsburg.
"While it's great to fill the seats that we have, we also need to be thinking about the shape of our legal system and what needs to change if we're going to achieve true justice in this country," Coleman said.
Throughout the next four years, Coleman noted that it is crucial that political pressure and awareness around judicial nominees should be an ongoing issue, not one dominated by the latest high-profile vacancy.
"This isn't something we can stop paying attention to until the next Supreme Court vacancy," she said.
