Biden Announced An Aggressive First Push To Diversify The Federal Courts

WASHINGTON — The White House on Tuesday announced President Joe Biden’s first slate of federal court nominees, putting forward a list of barrier-breaking candidates in an aggressive first push to counterbalance the wave of conservative judges confirmed over the past four years.

As had been widely expected for months, Biden will nominate US District Judge Ketanji Brown Jackson for the powerful US Court of Appeals for the DC Circuit, to fill Attorney General Merrick Garland’s former seat. A post on that court — long a springboard to the US Supreme Court — cements Jackson’s status as a frontrunner if a justice steps down under Biden, especially since Biden pledged to choose a Black woman for the high court. As a former public defender and member of the US Sentencing Commission, Jackson’s nomination also elevates a judge with the kind of diverse professional background that liberals hoped Biden would embrace.

The White House announced 10 federal court nominees and one nominee for the District of Columbia Superior Court. Biden’s other two federal appeals court nominees are, like Jackson, Black women: Tiffany Cunningham, a veteran patent lawyer in Chicago, was tapped for the Federal Circuit, which handles a docket heavy with intellectual property cases. Candace Jackson-Akiwumi, a private practice lawyer in Washington who is also a former public defender, is being nominated for the 7th Circuit. Only eight Black women have served on federal appeals courts, according to federal judiciary records.

The list of nominees features several judges who would make history if confirmed to lifetime appointments on the federal bench. US Magistrate Judge Zahid Quraishi, nominated for a federal district court seat in New Jersey, would be the first presidentially appointed Muslim American federal judge. DC Superior Court Judge Florence Pan, nominated for Jackson’s seat on the DC federal district court, would be the first Asian American woman to serve on that court. Judge Lydia Griggsby of the US Court of Federal Claims, nominated for the federal district court in Maryland, would be the first BIPOC woman on that bench.

Liberal advocacy groups launched public pressure campaigns since Biden won in November to make judges a priority and undercut the influence of the more than 200 conservative-leaning judges confirmed under former president Donald Trump. Biden’s transition team started accepting lists of potential nominees from outside groups, soliciting names from home state senators, and vetting candidates before he took office with an eye to announcing a batch of nominees early in his first year.

The White House also made a point of highlighting the professional diversity of nominees — liberal groups had urged the administration to broaden the pipelines to the bench and move away from the historic dominance of former prosecutors and corporate lawyers. Tuesday’s list featured four former public defenders — one of whom, Margaret Strickland, nominated for the federal district court in New Mexico, currently has a private civil rights and criminal law practice — along with four former assistant US attorneys.

Speaking with reporters on background on Tuesday, a senior administration official noted that with 11 nominees, Biden was moving more quickly to fill more seats right away than his immediate predecessors; former presidents Trump and Barack Obama announced their first federal court nominees a few weeks earlier than Biden, but they didn’t roll out as large a number right out of the gate.

Biden faces a steep road to matching the more than 220 federal judges confirmed under Trump, who now make up roughly a quarter of all active judges. New vacancies have steadily opened up since Biden was sworn in, mostly judges who were confirmed under former president Bill Clinton and are now eligible to take what’s known as senior status, allowing them to have a more flexible caseload while opening up their seat to a new judge. As of Tuesday, there were 100 vacancies nationwide.

The federal judiciary’s policymaking arm has advocated for years for Congress to approve more judgeships across the lower courts and presented a new proposal earlier this month to add 79 more seats. Congress hasn’t acted on the judiciary’s requests, and it’s not clear if the latest push will gain traction — it’s been nearly 20 years since Congress approved any new federal judgeships, and more than 30 years since lawmakers approved a comprehensive overhaul of the bench that included new circuit judgeships.

Liberal groups have publicly urged Biden to prioritize judicial nominations to take advantage of the Democratic majority in the Senate, frequently pointing out that Obama’s slower pace early on gave Republicans an opportunity to block nominees and hold seats open once they regained control. Three of Biden’s picks had been nominated under Obama for the federal bench but never received final votes in the Senate: Pan, New Jersey federal court nominee Julien Neals, and Colorado federal court nominee Regina Rodriguez.

The senior Biden administration official told reporters on Tuesday to expect a “steady drumbeat” of nomination announcements and that the White House would move “quickly” to fill vacancies as seats opened up, but didn’t provide a specific timeline. Senate Majority Leader Chuck Schumer released a statement saying that the “Senate will work quickly to confirm President Biden’s superb and accomplished judicial picks.”

The official said that, as has historically been the practice under Democratic and Republican presidents, the White House would defer to home state senators in considering nominees for the federal district courts, but take a more leading role in choosing nominees for the circuit courts. Appeals courts set precedent and are where a judge’s ideological background is more likely to make a difference in decisions. Biden’s priorities are choosing nominees with strong qualifications and whose backgrounds — both demographically and professionally — represent the “full diversity” of the public and the legal profession, the official said.

There was a chorus of statements from liberal advocacy groups praising the historic diversity of Biden’s first batch of nominees. Brian Fallon, executive director of Demand Justice, one of the groups that has publicly urged Biden to choose more professionally diverse judges, put out a statement saying Tuesday’s announcement represented a “welcome shift” in terms of prioritizing judicial nominations. But he also expressed disappointment that not all of the nominees came from “underrepresented” backgrounds, such as public defender offices and civil rights practices, saying that “old habits die hard for some senators who are used to recommending corporate lawyers and prosecutors.”

“We know Biden's stated preference for civil rights lawyers and labor lawyers for district courts is only as good as the buy-in it generates among home-state senators. This means progressives need to double down on pressuring these senators, and that is what we intend to do in the months ahead,” Fallon said.

Two Latino civil rights groups criticized the fact that just one of the 11 names on Biden's first list, Rodriguez, is from the Latino community. Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund and Juan Cartagena, president and general counsel of LatinoJustice PRLDEF, said in a joint statement that they were "extremely disappointed" with the Biden administration.

“As the nation’s largest minority group, with substantial projected growth nationwide, Latinos have been playing and will play an increasing role in our nation’s legal system, litigating many of the most important legal issues that will arise across the country in every area of law. There is no excuse for perpetuating the exclusion of Latino jurists from the federal bench. Five of the 13 federal circuit courts of appeals have no Latino or Latina active judges, and the all-important D.C. Circuit Court of Appeals has never had a Latino or Latina judge in its entire history," Saenz and Cartagena said.

In response to the statement from Saenz and Cartagena, a White House spokesperson told BuzzFeed News in an email that Biden "is committed to ensuring that the federal judiciary reflects the diversity of the country, and that of course includes making sure Latinos are fully represented on the bench."

"We’ve been in touch with MALDEF and numerous other stakeholders on identifying high-qualified nominees for vacancies and will be rolling out additional candidates in the future," the spokesperson wrote.

The majority of Trump’s federal court nominees were white and male, something that even sitting judges have spoken out against. At a hearing before the House Judiciary Committee last week, US District Judge Carlton Reeves of Mississippi testified that the “present trajectory risks a crisis of legitimacy” on the bench, specifically noting the lack of BIPOC judges on courts that serve parts of the country with higher proportions of Black and Latino residents.

“These and countless other comparisons reveal a disturbing fact: as our country becomes more diverse, our courts are becoming more homogenous,” Reeves said.

The Trump administration placed an emphasis on choosing younger, conservative-leaning nominees who could make the most of a lifetime appointment. The Biden official told reporters that the White House didn’t have a litmus test for age but was “eager” to consider nominees in every age bracket, including judges who would join the bench in their thirties. Tuesday’s list included five nominees in their forties, five nominees in their fifties, and one — Judge Rupa Ranga Puttagunta, an administrative law judge in DC nominated for the DC Superior Court — who is 39.

The Trump administration and Senate Republicans had reached out to judges who were confirmed under previous GOP administrations and eligible to take senior status about stepping down while Trump was in office to maximize their progress on nominations. Asked if the Biden administration would take the same approach, the senior administration official said the White House was focused for now on current vacancies.

After four years with an ally in the White House, conservative advocacy groups are redirecting their resources into opposing Biden’s picks. Carrie Severino of the Judicial Crisis Network tweeted in response to Tuesday’s announcement that Biden was “working overtime to appease the far left, and we can expect his judges to rubber stamp their extreme radical agenda.”