Biden Must Prioritize the Courts if Elected
By Brian Fallon and Christopher Kang
If elected, Joe Biden will inherit a judiciary in crisis. Republicans have worked for decades to stack the courts with right-wing ideologues dedicated to enacting a radical anti-worker, anti-woman, anti-LGBTQ+, anti-civil rights, and pro-Republican Party agenda. Trump and McConnell have perfected that project, filling our courts with overwhelmingly young, white, male, and far-right judges with alarming speed. When Democrats have had power, they have moved too slowly and appointed too many corporate lawyers and prosecutors to the bench, compounding the pro-corporate and pro-carceral biases of Republican appointees. They have also neglected to create new judgeships to keep up with the growth in population, allowing the judiciary to become overwhelmed with cases. The result is a judicial branch that’s profoundly unrepresentative of America, biased in favor of corporate interests, and unable to provide for equal access to justice because there aren’t enough judges to hear cases quickly enough. Increasingly, Americans cannot turn to the courts to hold the rich and powerful accountable or enforce civil rights, voting rights, the right to abortion, or immigrant rights.
As president, Biden should take a page from the Republican playbook and ruthlessly prioritize the speedy appointment and confirmation of young judges who can counterbalance Trump’s appointments. Biden should appoint a White House Counsel who will make nominations the top priority and follow George W. Bush’s lead in making a public commitment to announcing a nominee on a set timeline after a vacancy occurs. Making appointments quickly will take full advantage of the vacancies available, put pressure on the Senate to confirm judges with similar speed, and send an important signal to Democratic-appointed judges considering retirement. When making his appointments, Biden should prioritize young lawyers whose lifetime appointments will last the longest, another departure from past Democratic presidents; President Trump’s circuit court nominees are on average about five years younger than President Obama’s were.
Biden must also change the face of the judiciary to make it look more like America and less biased in favor of corporate interests and prosecutors. Trump has appointed the least diverse set of judges in decades, and Biden must rebalance the bench by nominating judges who will bring racial, ethnic, gender, gender identity, sexual orientation, religious, and disability status diversity to our courts. To counteract the judicial system’s growing pro-corporate and pro-carceral biases, Biden will also need to seek out lawyers who have worked as public defenders and public interest lawyers. That will require him to think differently about who to appoint than recent Democratic administrations have; approximately 85 percent of President Obama’s appointees were former corporate lawyers and/or prosecutors. To fully address this problem, Biden should put a moratorium on the appointment of corporate law partners and appoint more public defenders and fewer prosecutors.
The Biden administration will need to be willing to bypass outdated traditions to get the job done. During the selection process, recent Democratic presidents have relied on recommendations from senators, who in turn often outsource their recommendation process to a committee of lawyers in their home states. These committees slow down the process, and they are generally filled with prosecutors and corporate lawyers who are political allies or donors to the senators. Unsurprisingly, they tend to recommend corporate lawyers and prosecutors like themselves. Biden should pressure Senators to abandon these committees, and he should ignore recommendations from Senators who move too slowly or recommend candidates who fail to bring diversity to the bench. He also will need to ensure Senate Democrats don’t resurrect the blue-slip tradition for circuit court judges, which Republicans abolished to confirm nearly one-third of Trump’s circuit nominees. This tradition, which for years was exploited by segregationists and had a disproportionate impact on President Obama’s diverse nominees, essentially gives veto power to a senator over judicial nominees who will serve in his or her home state. If necessary, Biden must go further and push to eliminate blue slips for district court judges, too. Finally, Biden should not defer to the American Bar Association and its slow rating process that prizes traditional corporate and prosecutorial experience; Republican disregard of the ABA ratings have rendered them obsolete.
Biden must not only reform the judicial nomination process, he should push for structural reform of our judiciary itself, by championing legislation to dramatically expand the number of circuit and district court judgeships. Lower-court expansion is justified by the explosion in the country’s population and the number of cases judges hear, which forces people to wait years for justice and pushes judges to turn to procedural shortcuts that can bar people from bringing their cases. By expanding the number of judgeships and quickly appointing a diverse group of lawyers with public interest experience to the bench, Biden will be able to rebalance our courts and restore their legitimacy, leaving a progressive legacy that will last for decades to come.
Brian Fallon (@brianefallon) is a co-founder and executive director of Demand Justice
Christopher Kang (@cdkang76) is a co-founder and chief counsel of Demand Justice