WASHINGTON — Abid Qureshi, nominated to the federal bench by President Obama in the fall, would have been the nation’s first Muslim federal judge had the Senate confirmed him. But nominated late in a presidential election year, when traditionally few nominees get a vote, time — and politics — were always against him.
With the US Senate gone for the rest of the year, Qureshi is one of 52 nominees for federal district and appeals courts and the US Supreme Court who won’t make it onto the bench, at least for now. That group includes more than a dozen nominees who, like Qureshi, would have broken racial, gender, and religious barriers.
Civil rights and liberal advocacy groups, heartened by President Obama’s focus on diversity in the courts, are frustrated with the Senate’s pace on his judicial nominees— and are worried about what the bench will look like under President-elect Donald Trump.
“The question moving forward is, as you look at President-elect Trump’s picks for his cabinet, the 21 picks for the Supreme Court, they are overwhelmingly white and male, and what does that mean for courts across the country with respect to diversity and really reflecting the nation and the communities that they serve,” said Christopher Kang, national director of the National Council of Asian Pacific Americans, who worked on judicial nominations in the White House counsel’s office under Obama.
Trump’s list of 21 Supreme Court contenders — a list he put together with input from his soon-to-be White House counsel Donald McGahn II, his attorney general pick Sen. Jeff Sessions, and the conservative Heritage Foundation and Federalist Society — includes four women and three minorities. The Trump transition team did not return a request for comment.
Obama made diversity a priority in choosing nominees for the federal courts. By the administration’s tally, he put more women and minorities on the bench than any of his predecessors.
Qureshi’s nomination to the federal trial court in Washington, DC, was notable in that it happened during a presidential campaign that saw Trump advocate for a temporary ban on Muslims immigrating to the United States. Qureshi, a partner at the law firm Latham & Watkins in Washington, was born in Pakistan.
Qureshi’s nomination was seen as largely symbolic, given the timing so late in the year and the dozens of nominees already ahead of him. He declined to comment through a law firm spokeswoman.
The Senate will send back Obama’s nominees at the start of the new congressional session in early January. Other nominees who would have been firsts if confirmed include Rebecca Haywood, a federal prosecutor who would have been the first African American woman to serve on the US Court of Appeals for the Third Circuit; US District Judge Lucy Koh of California, who would have been the first Korean American federal appeals judge; and US District Judge Abdul Kallon of Alabama, who would have been the first African American from the state to serve on the Eleventh Circuit.
Nan Aron, president of the liberal group Alliance for Justice, said diverse picks in southern federal courts were especially important because of the racial imbalance among judges in the region. Other nominees who didn’t get a vote before the Senate recessed on Dec. 16 included:
- Judge Dax Lopez, a state judge who would have been the first Latino federal judge in Georgia;
- Karen Scholer, a private practice lawyer who would have been the first Asian American federal judge in Texas;
- Stephanie Finley, the U.S. attorney for the Western District of Louisiana who would have been the first African American federal judge in the district;
- and Patricia Timmons-Goodson, a member of the US Commission on Civil Rights who would have been the first African American federal judge in the Eastern District of North Carolina.
Democrats have accused Republicans of unprecedented obstruction when it comes to the federal courts. The last federal judge to make it onto the bench this year, Judge Brian Martinotti of New Jersey, was confirmed in July.
The Senate confirmed 20 judges to federal district and appeals courts during Obama’s final two years in office, and left for the holiday recess with 99 court vacancies. More seats are expected to open up by the time Trump takes office in January. Of the vacant seats, 38 are considered “emergencies” by the judiciary because of the caseload. Those numbers don’t include the US Court of International Trade and the US Court of Federal Claims, where there are also open seats.
By comparison, the Senate confirmed 68 federal judges during President George W. Bush’s last two years, according to the judiciary. By the end of December 2008, there were 26 nominees pending and 53 vacancies.
Senate Judiciary Committee Chairman Chuck Grassley has defended his track record on judicial nominations. He released a statement in September noting that the committee had held more hearings on nominees at that point than were held by the same time in the second Bush administration.
A spokesman for Majority Leader Mitch McConnell, whom Democrats criticized for not scheduling votes on court nominees who made it out of the judiciary committee, did not return a request for comment.
Trump could renominate Obama’s judicial nominees, but few candidates successfully make the leap across administrations, especially when the political party in power changes. With a Republican-held Senate, Trump won’t need to placate Democrats by pulling from Obama’s list.
Democrats could hold up nominees through a senatorial courtesy system known as the “blue slip” process, in which the judiciary committee won’t act on a nominee until both home state senators return a form with their approval. Grassley has said that he plans to continue to use that system, according to the Wall Street Journal.
Lena Zwarensteyn, who works on judicial nominations at the liberal lawyers group the American Constitution Society, said she hoped Trump would continue Obama’s focus on diversity in the federal courts, but wasn’t optimistic given his nominees so far.
“We should be beyond celebrating ‘firsts’ because they shouldn’t be the firsts anymore, but that’s certainly something that we’re incredibly cognizant of as we regret the fact that these nominees are being returned,” Zwarensteyn said.