Already, 39 judges on the federal circuit courts and trial courts have announced plans to vacate their seats in the wake of the inauguration either by retiring or taking “senior status,” a form of semi-retirement in which judges have a reduced caseload, according to data from the Administrative Office of the U.S. Courts.
“I think the experience for progressives of the Trump years really brought home the importance of judicial nominations, and I think that means the Biden administration is starting out recognizing that this needs to be a priority,” Elizabeth Wydra, president of the Constitutional Accountability Center, told CBS News.
In all, there are 62 current vacancies on the U.S. district and circuit courts, and another 26 seats that will open up in the coming weeks and months.
Among the seats primed for Mr. Biden to fill are two on the U.S. Court of Appeals for the District of Columbia Circuit. Judge Merrick Garland, nominated to serve as Mr. Biden’s attorney general, currently occupies one of those seats, and another is filled by Judge David Tatel, who will assume senior status at a date to be determined.
There are also six more existing or upcoming vacancies on the 1st, 2nd, 7th and 10th Circuits, and another 77 seats on the district courts for Mr. Biden to fill immediately or in the future.
The White House has yet to roll out its first slate of judicial nominees and it’s unclear when it will do so, as Mr. Biden has been focused on getting his $1.9 trillion coronavirus relief package through Congress. But White House counsel Dana Remus sent a letter to Democratic senators in December asking them for “highly qualified and diverse candidates” for district court, U.S. attorney and U.S. marshal nominations in their states, according to HuffPost, which first obtained the letter.
Remus told Democrats the White House is focused on nominating individuals with diverse legal backgrounds, including public defenders, civil rights lawyers and legal aid attorneys, and who “represent Americans in every walk of life.”
“Most cases do not make their way to the Supreme Court,” Wydra said. “Much of the law is made and meted out in the lower courts, so that is incredibly important and highlights the importance of having people on the bench who know what it’s like to represent the disempowered and the vulnerable.”
Jeremy Paris, former chief counsel for nominations and oversight on the Judiciary Committee under Chairman Patrick Leahy, said Remus’ outreach suggests the White House is putting heightened attention on judicial picks and is looking to move swiftly.
“I believe that for Democrats, especially this administration coming in with the enormous challenges we have, there is a natural inclination to let the focus be on COVID-19 relief, the economic recession, reversing the damaging policies of the Trump administration. That’s a natural and understandable focus,” Paris, who also advised Democratic Senator Mazie Hirono of Hawaii during Justice Neil Gorsuch’s confirmation process, told CBS News. “I look at it more as don’t let the confirmation process for judges fall behind. And they aren’t.”
Key to confirming Mr. Biden’s judicial picks will be Senate Majority Leader Chuck Schumer and the Senate Judiciary Committee, now helmed by Senator Dick Durbin of Illinois. Both Senate Minority Leader Mitch McConnell and Senator Chuck Grassley, who chaired the Judiciary panel, were crucial to Mr. Trump’s success in remaking the federal judiciary, as they were laser focused on confirming his nominees. In all, Mr. Trump installed more than 230 judges on the federal bench, including 54 to the circuit courts.
During Grassley and then Senator Lindsey Graham’s tenure chairing the Judiciary Committee, nominations to the federal circuit courts proceeded despite unreturned or negative “blue slips” from home-state senators. A blue slip refers to the piece of paper on which senators indicate whether they support or oppose a nominee for a position in their state. For district court nominees, positive blue slips were required from both home-state senators for a nominee to receive a confirmation hearing.
Senate Democrats complained Republicans upended Senate norms to push through Mr. Trump’s judges by stripping home-state senators of their effective veto-power over circuit court nominees. But after four years of the loosened policy for the former president’s nominees, Democrats argue that the same process should now apply to Mr. Biden’s judicial picks.
“What they did was they changed the practice of the Senate, and there have to be the same rules for Democrat nominees and Republican nominees,” Paris said. “[Republicans] set the rules of how we operate, and it would be foolish not to take the same rules and operate that way ourselves. If people want a different way of doing things, there has to be give-and-take, but we have to operate as aggressively as the other side operated.”
Paris said he understands the desire to move past the rancor of the past four years and toward comity, and the institutional value in doing so, but “the stakes are too high” to give GOP senators veto power over circuit court nominees, as the courts will be faced with cases on issues like voting rights and partisan gerrymandering, as well as challenges to Mr. Biden’s agenda. Already, a federal district judge in Texas appointed by Mr. Trump temporarily halted Mr. Biden’s 100-day moratorium on certain deportations of immigrants.
“It’s very important we bring the courts into balance,” he said. “I don’t think it makes sense to erect barriers now for putting people on these circuit courts that weren’t there for Donald Trump’s nominees.”
A Democratic aide to the Senate Judiciary Committee told CBS News that Durbin has said on numerous occasions there can’t be one set of rules for Republican nominees and another set for Democratic nominees. The aide also noted that for district court nominees, which required positive blue slips from both home-state senators to proceed, Democrats worked in good faith with the Trump administration to identify consensus district court nominees in blue and purple states.
The aide said it’s Democrats’ expectation that Republicans will likewise act in good faith and work with the Biden administration to fill district court vacancies in red and purple states.
While the number of future vacancies depends solely on decisions by judges to step down, Congress could take up legislation creating new judgeships for the lower courts. Congress last passed a judgeship bill in 1990, though caseloads in the circuit courts and district courts have increased over the last 30 years.
The Judicial Conference of the United States, chaired by Chief Justice John Roberts, has recommended Congress establish five new judgeships in the 9th U.S Circuit Court of Appeals, the nation’s largest, and 65 new judgeships in two dozen district courts nationwide.
“Several of the circuit courts and district courts have been understaffed, and they’ve been able to get by with senior judges, but a number of the senior judges really don’t want to have to work as much as they need to,” Sheldon Goldman, professor emeritus at University of Massachusetts Amherst who studied the federal judicial selection, told CBS News.
Progressives have also been pushing for an expansion of the Supreme Court beyond its nine seats to rebalance its ideological composition, a proposal that gained traction after Republicans confirmed Justice Amy Coney Barrett to fill the late Justice Ruth Bader Ginsburg’s seat just before the election.
Mr. Biden said he would create a bipartisan commission to recommend Supreme Court reforms, though the White House has not yet released information on the panel.
Still, the president assumed office with a number of crises to confront, chief among them the coronavirus and the economic havoc it has wrought.
“Biden’s economic agenda is very top of his to-do list,” Goldman said. “So I don’t know if there is going to be a focus on the judiciary for at least a little while.”