Biden's Judicial Nominees: Turnabout Is Fair Play

And a judge’s questionable effort to handpick her successor.

Judge Johnnie B. Rawlinson of the U.S. Court of Appeals for the Ninth Circuit (screenshot via YouTube).

Not resting on his laurels after the confirmation of Judge Ketanji Brown Jackson (D.C. Cir.) to the U.S. Supreme Court, on Wednesday President Joe Biden announced his sixteenth round of judicial nominees. With more than 100 vacancies on the lower courts and midterm elections looming, which could cause Democrats to lose control of the Senate, there’s no time to waste.

Here’s where things stand in terms of judicial nominees in the Biden Administration (as summarized by Carl Hulse of the New York Times):

• 59 judges confirmed so far (one to the Supreme Court, 15 to the circuit courts, and 43 to the district courts);

• 16 nominees voted on by the Senate Judiciary Committee (“SJC”) but not yet considered by the full Senate (3 for the circuit courts and 13 for the district courts);

• 6 nominees who will require votes to be discharged from committee, an extra procedural step that’s required when the SJC deadlocks on a nomination (and that introduces additional delay into the process); and

• 8 nominees who are still awaiting SJC hearings.

According to this week’s White House announcement, the administration has now announced 90 federal judicial nominees, when you include the latest round.

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Here are the five lawyers and judges who constitute the sixteenth round of Biden nominees:

• Judge John Z. Lee (N.D. Ill.), nominated to the Seventh Circuit. Appointed to the district court by President Obama in 2012, Judge Lee would be the first Asian American judge to ever serve on the Seventh Circuit.

• Judge Salvador Mendoza, Jr. (E.D. Wash.), nominated to the Ninth Circuit. Judge Mendoza, also appointed by President Obama to the district court (in 2014), would be the first Hispanic judge to ever serve on the Ninth Circuit from Washington State.

• Magistrate Judge Stephen Henley Locher (S.D. Iowa), nominated to the Southern District of Iowa. Judge Locher became a magistrate judge last year, after working in private practice and serving as an assistant U.S. attorney.

• Nancy Maldonado, nominated to the Northern District of Illinois. Currently a partner at Miner Barnhill & Galland in Chicago, Maldonado would be the first Hispanic woman to ever serve as a federal judge in the state of Illinois.

• Gregory Williams, nominated to the District of Delaware. Currently a partner in the Wilmington office of Fox Rothschild, he would be the only judge of color currently serving on the U.S. District Court for the District of Delaware, and the second African-American judge to ever serve on the District of Delaware.

Taken collectively, they’re very much in keeping with Biden nominees so far. First, they have strong credentials and experience. Three are already sitting judges, two of them with eight or more years of experience. The remaining two have extensive litigation experience—around 20 years for Nancy Maldonado and almost 30 years for Gregory Williams. Two out of the five served as federal judicial law clerks.

Second, they’re diverse. As noted above, four out of the five would add some sort of demographic diversity to the bench.

Third, they’re (relatively) young. Based on college graduation year, Judge Lee, a 1989 graduate of Harvard College, appears to be the oldest of the group, and he’s only 54. That age would have put him in the middle of the pack for Obama nominees, who had a median age at appointment of around 53. The youngest of the group, Judge Locher, is in his early to mid 40s.

Looking at all of President Biden’s judicial nominees so far, here are some striking statistics, via NBC News:

• 72% women

• 30% Black

• 21% Hispanic

• 19% Asian American

• 27% public defenders

• 22% civil-rights lawyers

As reflected in this data, the Biden appointees have brought a lot of diversity to the bench—not just demographic diversity, but experiential or professional diversity as well. Past administrations often looked to former prosecutors and Biglaw partners for potential judges; in the Biden Administration, those backgrounds seem like a liability. (But it can be overcome; Gregory Williams, nominated in this latest round, is a partner at Fox Rothschild, an Am Law 100 firm.)

As I wrote last year in a Los Angeles Times op-ed, picking so many public defenders and civil-rights lawyers will help President Biden shift the bench to the left, since lawyers from these backgrounds tend to be on the more liberal/progressive side. I stand by my prediction that the Biden judges will be the most liberal since President Carter’s—and will get into lots of ideological scrapes in the future with the Trump judges, who I expect to be the most conservative cohort on the federal bench.

But conservatives can hardly complain about the youth or ideological leanings of the Biden nominees. Former president Donald Trump picked very young, solidly conservative judges, including many with ties to the Federalist Society, and turnabout is fair play.

Here’s something we can complain about: the mini-trend of judges trying to handpick their successors. From the Nevada Independent:

For more than 20 years, Judge Johnnie Rawlinson has served on the 9th Circuit Court of Appeals as not only the first but, for most of that time, also the only African American woman on that court. Now, the longtime judge says she may be ready to step back and take so-called senior status—but only if Nevada’s two U.S. senators back her preferred replacement. 

Her pick: Berna Rhodes-Ford, a former clerk for Rawlinson, a lawyer for more than two decades—and the wife of Democratic Nevada Attorney General Aaron Ford. 

Sometimes judges try to subtly influence the selection of their successors—for example, by using surrogates or intermediaries to whisper into the ears of decision makers in the White House or Senate. But there’s nothing subtle about Judge Rawlinson’s approach:

Rhodes-Ford, who currently serves as the general counsel at Nevada State College (NSC), told The Nevada Independent in an interview Wednesday that it was Rawlinson who initially approached her about the potential for a nomination to the circuit court, a consideration she called “the honor of a lifetime.”

“When she approached me to see if I would even be interested in the seat, I wasn't expecting the call because I actually love the position that I have,” Rhodes-Ford said. “But once she told me that, if she considered going senior, would I even be interested—I, of course, was interested because this is a position that has such a great impact on our legal system.”

Not only did Judge Rawlinson approach her preferred pick with the job offer, she is even lobbying the political branches:

Rawlinson said she had already spoken to the White House about her wishes, as well as Sen. Catherine Cortez Masto, the state’s senior senator. She also said she was “in the process” of securing a meeting with Sen. Jacky Rosen, the state’s junior senator.  

Not so fast, Judge Rawlinson. As it turns out, the senators actually have a process for making judicial picks:

[A statement sent to the Nevada Independent by Senator Cortez Masto’s office explained] that the senators also established a set of two bipartisan judicial commissions composed of lawyers from across Nevada, meant “to ensure an open, accessible application process for judicial vacancies.”

“Should a Nevada vacancy open up on the Ninth Circuit, Senator Cortez Masto will support the work of the Northern and Southern commissions, which will come together to recommend candidates to the Senators and the White House,” the spokesperson said. 

In a separate statement, a spokesperson for Rosen also pointed to the commissions, calling the group a “diverse group of Nevada’s top legal minds” that would recommend potential candidates.  

But Judge Rawlinson remains undaunted:

Rawlinson said she believes the commission would “not have as much sway” in this case, as the White House becomes more involved in the nomination of an appellate judge, rather than it is with appointments for a district court judge. 

Rawlinson also said that she had “some concerns” about the commissions overall. 

“I think those commissions sometimes have the tendency to perpetuate themselves,” Rawlinson said.

But if this is the concern, what could be more self-perpetuating than a judge picking her former clerk and protégé as her successor?

As for the problems with this practice of judges selecting their successors—besides the self-perpetuation, which could have adverse effects on diversity (since the current federal bench is not very diverse)

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—I’ll just quote from an op-ed that Laurie Lin and I wrote for the Wall Street Journal last year, Federal Courts Aren’t Royal Ones:

For a judge to condition his retirement on the appointment of a particular successor is inappropriate. Canon 5 of the Code of Conduct for U.S. Judges requires federal judges to “refrain from political activity,” and selecting judicial nominees, a task the Constitution assigns to elected officials, is inherently political. The Judicial Conference of the U.S. Committee on Codes of Conduct has interpreted Canon 5 to prohibit federal judges even from serving on committees that select state-court judges.

It’s understandable that judges take an interest in who succeeds them, and a judge seeking to advance a protégé may have the best intentions…. But judicial seats aren’t property to be bequeathed. A judge’s legacy should consist in his own judicial work….

This isn’t a partisan issue. Both parties and all three branches of government have institutional interests in keeping the selection of our next generation of judges in the White House and Senate where it belongs.

I’m not too worried about the situation with Judge Rawlinson’s seat specifically. The Biden Administration has so many actual vacancies to fill that this potential vacancy, with all the baggage attached to it, is surely a low priority.

What does concern me, however, is how we now have a third example of a judge getting actively involved in selecting her successor, coming on the heels of similar situations involving Fourth Circuit and Seventh Circuit judges. And Judge Rawlinson’s effort to pick her replacement is the most open and notorious, with both the judge and her would-be successor giving media interviews to promote the succession plan.

In our WSJ piece, Laurie Lin and I proposed letting the judiciary handle the problem itself by revising the Code of Conduct to make explicit what is already implicit: judges should not get involved with selecting their successors. But if that doesn’t happen—or if it’s ineffective, which is sometimes the case with the judiciary’s self-regulation (see generally Fix the Court)—we might need stronger stuff.

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1. The Biden Administration said it has announced 90 “federal judicial nominees.” We have 59 confirmations, 16 nominees who have had SJC votes, and 13 nominees who are awaiting hearings (counting the five new nominees), which adds up to 88. What explains the discrepancy?

It appears that the administration is counting two appointees to the Court of Federal Claims, a federal but not an Article III court, in its total of 90. Compare this Administrative Office of the U.S. Courts list of 61 total confirmations with this Ballotpedia list of 59 confirmations to Article III courts. The first list includes Judges Carolyn Lerner and Armando Bonilla, both confirmed to the Court of Federal Claims, while the second list does not.

2. Yes, Judge Rawlinson is a Black woman who has selected another Black woman as her desired successor. But with the federal judiciary around 71 percent white and two-thirds male, my guess is that letting judges pick their replacements would have a negative effect on diversity overall. In the two other recent cases of circuit judges trying to select their successors, white men picked other white men.