Biden Is Already Facing Pushback From His Own Base On Judicial Nominees

“We want to push the administration to be better. It’s not just, ‘You’re not Trump.’”

WASHINGTON — President Joe Biden announced his first judicial nominees last month, a slate intended to send a message about his commitment to diversity. Liberals are eager for Biden to reshape the bench after four years on the sidelines, but they’ve also already shown they’re prepared to call him out if his picks don’t embody the depth of professional and racial diversity they want to see.

The White House announcement of Biden’s first nominees on March 30 was met with an immediate chorus of praise from liberal advocacy groups and Democrats in Congress. But that evening, two Latino civil rights organizations, the Mexican American Legal Defense and Educational Fund (MALDEF) and LatinoJustice PRLDEF, released a statement saying they were “extremely disappointed” that just one of the 11 nominees was Latinx.

“Today’s public rollout of judicial nominations in the expectation of unalloyed praise simply demonstrates the Administration’s apparent obtuseness about the importance of the Latino community in the nation’s legal system,” Thomas Saenz, president and general counsel of MALDEF, and Juan Cartagena, president and general counsel of LatinoJustice PRLDEF, said at the time.

Other liberal groups have applauded Biden’s focus on diverse picks while also noting that they weren’t happy to see nominees with backgrounds as federal prosecutors or corporate lawyers — two traditional paths to the bench that some liberals want Biden to move away from. This week, two dozen public interest organizations sent a letter to White House counsel Dana Remus expressing “concern” that there weren’t any nominees “with genuine experience representing consumers and workers,” according to a copy reviewed by BuzzFeed News.

That Biden is already facing pushback from his own base on judicial nominees contrasts with the largely united front conservatives presented when it came to former president Donald Trump’s choices for the bench. Republican senators and conservative groups objected to a handful of Trump nominees who they didn’t believe had solid enough conservative credentials or if there were concerns about qualifications or inflammatory past writings. But Trump didn’t face public criticism from Republicans this early, and the objections were never about categories of nominees or the White House’s overall approach.

Biden has pledged to nominate judges who are not only diverse in terms of personal identity but also in their career trajectories. The majority of judges confirmed under Trump were men (75%) and white (83%), according to the federal judiciary’s public database, and a large number of them previously worked as assistant US attorneys or represented corporate clients at private law firms. Biden’s first slate includes several potentially history-making picks, including a New Jersey district court nominee who would be the first presidentially appointed Muslim American federal judge, along with four former public defenders and a civil rights lawyer.

Widening the umbrella means inviting input — and, potentially, criticism — from an array of communities and organizations. Robert Raben, a former Clinton White House official who has advocated to diversify the bench, said he’s pleased to see the growing interest in judges across the progressive movement, even if it makes the work of selecting nominees more complicated for the White House. He’s long lamented that Democrats haven’t made federal judges a priority for voters and an integral part of their broader policy agenda the way conservatives have for years.

When Trump, Senate Republicans, and conservative activists would talk about what they wanted in judges, they tended to focus on a few core issues, such as abortion opposition, gun rights, deregulation, and conservative legal philosophies. The Democratic Party’s “amalgam of dozens of interests,” on the other hand, makes selecting nominees that the base will rally around harder, Raben said. While he said he was “100% certain” Biden would make good on the pledge to choose diverse judges, he was “delighted” to see advocacy groups speaking out.

“In a system where squeaky wheels get grease, you have to squeak,” Raben said.

Linda Jun, senior policy counsel at Americans for Financial Reform, one of the groups that sent the letter to Remus this week advocating for more professional diversity, said their coalition wanted to make sure the White House got the message about “the need to have judges who have the perspective of doing work representing regular people.” Jun said her organization, which formed after the financial crisis of 2008, hadn’t always been involved in advocacy around judges but “evolved” over the past decade, especially after the 200-plus federal judges confirmed under Trump.

“There’s not just automatic loyalty or support [for Biden], and I think that’s a good thing,” Jun said. “We want to push the administration to be better. It’s not just, ‘You’re not Trump’ or ‘You’re on the left and that’s enough and we’re going to accept that.’”

Federal judgeships are lifetime appointments, which makes the stakes higher than they are for other presidentially nominated posts. Presidents typically defer to home-state senators to choose district court nominees; senators can suggest candidates for appeals court seats, but the White House takes more of a lead role, since those courts set precedents and judges’ ideological backgrounds are more likely to matter in decision-making.

Presidents who try to go around senators risk losing support — and, most importantly, votes — during the Senate confirmation process. For a brief period in late 2017, Republican Sen. John Kennedy of Louisiana publicly sparred with then–White House counsel Don McGahn after he accused McGahn of trying to steamroll him on a federal appeals court nominee.

HuffPost reported in December that Remus sent a letter to Democratic senators asking for diverse district court candidates and making clear that that was a priority for the Biden administration.

The deference to home-state senators means outside groups sometimes have to lobby beyond the White House. After Colorado’s Democratic senators recommended Regina Rodriguez — an attorney with a corporate-focused practice and a former assistant US attorney — to the Biden administration for a district court judgeship, Demand Justice, a liberal group focused on the courts, launched an opposition campaign around the fact that Rodriguez lacked the professional diversity they wanted Biden to focus on.

Rodriguez ultimately got the nomination. Other parts of her background underscore the overlapping interests the Biden administration is trying to balance. She was the lone Latina on the list, and her previous nomination to the Colorado court under former president Barack Obama was held up by the Republican-controlled Senate. Demand Justice released a mixed statement in response to Biden’s first slate. The group praised his pace on judges and selection of former public defenders, but, without mentioning Rodriguez or other nominees by name, said that “old habits die hard for some senators who are used to recommending corporate lawyers and prosecutors for federal judgeships.”

In an interview this week, Brian Fallon, executive director of Demand Justice, said he was “fairly optimistic” about Biden’s future nominees. He said he understood Rodriguez and a few other names on the list represented “unfinished business from 2016” and that Remus and her team could now start from scratch in working with senators as more seats open up.

One highly anticipated announcement is for one of two vacancies on the US Court of Appeals for the DC Circuit, a uniquely powerful court that serves as the main forum for fights over executive power. Biden nominated US District Judge Ketanji Brown Jackson — a former federal public defender and a Black woman who is widely considered a frontrunner for the next Supreme Court vacancy — for one of those seats. There are a dozen circuit court vacancies, 10 of which were announced after Biden was sworn in.

A White House official told BuzzFeed News that the Biden administration was “very proud of this first set of nominations and the professional diversity they represent.” Addressing the public criticism from MALDEF and LatinoJustice PRLDEF, the official wrote in an email that the White House had been in touch with MALDEF, along with other stakeholders, and had a “shared goal of ensuring that the Biden-Harris Administration puts forward highly qualified nominees who look like America and reflect of the best of the legal profession, including additional Latino candidates.”

The official wrote, “This is the beginning, not the end, of our judicial nominations.”

Saenz of MALDEF confirmed that his organization was in touch with the White House about nominations. He declined to share details but said that based on those discussions he expected to “see some improvement” in Latinx representation in the next rounds of nominees. He said he remained disappointed with the initial list and would be “very attentive” to future announcements.

“That’s a disappointment that can’t be fixed. There’s only one first set of nominees. The symbolism, the leadership opportunity — lost,” he said.

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