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Biden Is Considering History-Making Nominees For The Federal Courts

The FBI recently did a background check for a lawyer who would be the first American Muslim federal district judge, according to a source familiar with the process.

Posted on March 11, 2021, at 7:46 p.m. ET

The Washington Post / The Washington Post via Getty Im

Judge Ketanji Brown Jackson

WASHINGTON — Former President Donald Trump’s federal court nominees were overwhelmingly white men with experience as prosecutors or corporate lawyers. President Joe Biden has pledged to tap more diverse slates of nominees and his administration is vetting some potentially history-making candidates.

As early as next week, the White House is expected to announce US District Judge Ketanji Brown Jackson as Biden’s nominee for the US Court of Appeals for the DC Circuit, sources say, either for newly confirmed Attorney General Merrick Garland’s seat or for a second vacancy that opened up shortly after Biden took office. Jackson is a former federal public defender in Washington, DC, and served on the US Sentencing Commission before becoming a judge; she would be the third Black woman to serve on that court.

Biden has vowed to nominate a Black woman to the US Supreme Court if the opportunity arises. Jackson has for years been considered a frontrunner for the Supreme Court under a Democratic administration, and a spot on the powerful DC Circuit — historically a springboard to the Supreme Court — would further cement that status. A source who requested anonymity to speak about the confidential vetting process said that they received a call from FBI background checkers in recent weeks about Jackson. The FBI typically doesn’t specify what position a candidate is being vetted for, but the source said the call was a sign the White House was moving forward with Jackson’s nomination for the DC Circuit.

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For the federal district court in Washington, DC, the White House is vetting DC-based attorney Abid Qureshi, BuzzFeed News has learned. Qureshi, a partner at the law firm Latham & Watkins, would be the first Muslim federal judge nominated by a president; there are a handful of Muslim Americans serving as federal magistrate judges, who are appointed by the court where they serve. Qureshi was nominated for the same DC court in 2016 by former president Barack Obama, but the Senate never acted on that and Trump did not renominate him. Qureshi did not return a request for comment on Thursday.

Three sources said that the FBI had been making calls in recent weeks as part of a background check into Qureshi. One of those sources, who was contacted regarding that background check, confirmed Qureshi was being considered for the district court; the other two sources did not know what position Qureshi was up for.

Next week marks an important, albeit unofficial, date when it comes to Biden’s progress on judicial nominations: March 17, which is when Obama announced his first federal court nominee in 2009. Liberal advocacy groups were frustrated by the Obama administration’s slow progress filling vacancies while Democrats controlled the Senate, and have urged Biden to move faster. Obama’s pace meant that by the time Republicans took back the Senate in 2014, then–Senate majority leader McConnell could, and did, hold up Obama’s nominees, leaving those seats open for Trump to fill at a record clip.

Liberal groups like Demand Justice and Alliance for Justice have publicly urged the Biden administration to choose nominees who are professionally diverse — more public defenders and civil rights lawyers, for instance — as well as more women and BIPOC candidates. There are nearly 100 vacancies across the federal courts; since Biden took office, more than 40 judges, most of whom were confirmed under former president Bill Clinton, have announced plans to retire or take senior status, a position that allows them to scale back their caseload while freeing their seat for a new judge.

The White House has been mum about when they’ll start rolling out lower court or US attorney nominees. HuffPost reported in December that then-incoming White House counsel Dana Remus had sent a letter to Democratic senators asking for lists of potential nominees for pending vacancies by Jan. 19. Remus also specified that the administration wanted professionally and demographically diverse picks. A White House spokesperson did not return a request for comment on Thursday.

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Rep. Eleanor Holmes Norton, who is the District of Columbia’s lone member of Congress, said in a phone interview on Thursday that the White House had asked her to submit names swiftly for the US attorney post in Washington, which is managing the investigation of the Jan. 6 insurrection at the US Capitol. That didn’t leave her time to go through her normal process of having a commission of local attorneys vet applicants and then recommend candidates for her to interview, she said. Instead, Norton said she handled the process herself and had already sent three names to the White House. She said she expected Biden would notify her shortly before he planned to announce his choice, and that hadn’t happened yet.

Norton declined to name candidates she interviewed, but two sources familiar with that process said top contenders who received interviews included Anjali Chaturvedi, Matthew Graves, and Jonathan Kravis; one of those sources also said that Norton’s office vetted Jason Downs. The National Law Journal previously reported that Chaturvedi and Graves were considered leading contenders for the US attorney job, and the Washington Post reported last week that Norton confirmed she’d recommended a candidate to Biden.

Norton said her starting place for the US attorney applicants was that they had to live in Washington; the only Senate-confirmed US attorney for DC under Trump, Jessie Liu, lived in Virginia when she was nominated. Presidents historically have deferred to home-state senators in choosing nominees for district courts and US attorney spots. Obama, Clinton, and former president George W. Bush extended that same courtesy to Norton, but Trump did not.

“I rebel at the notion that under Republican presidents US attorneys for the District of Columbia did not even have to live in the District of Columbia,” she said.

Kevin Lamarque / Reuters

The US attorney’s office in Washington has brought charges against more than 300 people to date in the Capitol riot investigation. The next US attorney will take over what the government described in a recent court filing as “one of the largest [investigations] in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence.”

Chaturvedi, Graves, and Kravis previously held senior positions in the US attorney’s office in DC. Chaturvedi, now an assistant general counsel at the government contractor Northrop Grumman, led an organized crime strike force and was deputy chief of the felony trial section, according to her LinkedIn bio. Graves is the former head of the fraud and public corruption section. Kravis, who led the prosecution team that won the conviction of longtime Trump ally Roger Stone, was deputy chief of the public corruption section and also helped the DC attorney general’s office launch a public corruption office. Downs, the chief deputy attorney general in the DC attorney general’s office, is a former public defender in DC and served as the office's training director.

Norton also said that she’s doing interviews this week with candidates for a vacancy on the US District Court for the District of Columbia. Norton again declined to share names, but the two sources familiar with the process said that they are DC Superior Court Judge Todd Edelman, US Magistrate Judge Zia Faruqui, DC Solicitor General Loren AliKhan, and private practice attorneys Ana Reyes and Jia Cobb. Those five went through Norton’s usual commission vetting process.

There’s only one district court vacancy right now; US District Judge Emmet Sullivan announced shortly after Biden took office that he would take senior status. Qureshi was not on the list of candidates that several sources said Norton’s commission had recommended for Sullivan’s seat, but if Jackson is nominated for Garland’s spot on the DC Circuit, that would create a second open seat. Norton had recommended Qureshi and Edelman to Obama in 2016; the Senate also did not act on Edelman's nomination before Trump took office.

The slate of candidates that Norton is interviewing for Sullivan’s seat include two former public defenders — Edelman and Cobb, whose private practice work involves civil rights litigation. AliKhan has been with the DC attorney general’s office since 2013 and was involved in the office’s numerous legal fights against the Trump administration, including a lawsuit brought jointly with the Maryland attorney general’s office accusing Trump of unconstitutionally holding on to his financial interests in his business empire while president.

Reyes is a partner at a large law firm in DC, Williams & Connolly — the type of corporate legal background that liberal groups have urged Biden to move away from — but her practice has featured work on behalf of refugees and on asylum law. Faruqui spent more than a decade in US attorney offices, first in St. Louis and then in Washington — another traditional path to the federal bench that liberal groups hope Biden relies less on — but, like Qureshi, would be a potentially history-making pick as an American Muslim.

The candidates interviewed by Norton for the district court and US attorney spot either declined to comment or did not return interview requests.

UPDATE

Updated with additional information about the candidates under consideration.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.