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The Biden Administration's Latest Slate Of Judicial Nominees
Will judges end up being President Biden's greatest accomplishment while in office?
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In his one term, former President Donald Trump appointed three Supreme Court justices, cementing the conservative majority at the Court, and 223 judges to the lower federal courts. Perhaps I’m biased as someone who writes about the judiciary, but I think there’s a strong case to be made that President Trump’s greatest accomplishment was his reshaping of the federal bench.1
Could the same end up being true of President Joe Biden? After Biden’s approval rating hit a new low after the much-criticized U.S. withdrawal from Afghanistan, Bret Stephens of the New York Times wondered whether we might have “another failed presidency at hand.” But even if Biden ends up failing in some areas, he might still succeed when it comes to judges, just as his predecessor did—at least if his early track record is any indication.
For chapter and verse, I refer you to The Biden Judge, an excellent draft paper by John P. Collins Jr. that I’ve mentioned previously in these pages. Consider this data, based on President Biden’s first six slates of judicial nominees:
Speed. President Biden got four circuit judges confirmed before the August recess, with three more out of the Senate Judiciary Committee and just waiting for votes of the full Senate. This is a faster pace than even President Trump’s impressively quick clip; Trump didn’t see his fourth circuit judge confirmed until September 28. As for total judges confirmed before the August recess, both circuit and district, Biden is ahead of every president since Richard Nixon (who benefited from a less partisan environment for judicial confirmations).
Credentials and qualifications. Despite denying the American Bar Association (ABA) an early look or “sneak peak” at nominees, the Biden Administration has done extremely well in terms of the ABA’s influential ratings of judicial nominees. As of September 2, the ABA had rated 30 of President Biden nominees; 27 out of 30 (90 percent) received the highest rating of “well qualified,” the remaining three earned the “qualified” rating, and no nominees were deemed “not qualified.”
Diversity. President Biden’s nominees are very diverse, both personally and professionally. The four circuit judges he’s gotten confirmed so far are all Black women, deepening the bench of possibilities if and when he gets the chance to fulfill his campaign promise of appointing the first Black woman to the Supreme Court. It seems that almost every nominee of his is a demographic “first” of some sort. And on the professional front, his nomination of former public defenders, civil rights attorneys, and labor lawyers—a break from the traditional focus on prosecutors and lawyers from private practice, especially Biglaw—also stands out. Of his first 32 nominees, 12 are former public defenders and four are civil-rights lawyers. This might not seem like a lot, but it’s actually a ton; as of August 2020, only three circuit judges—about one percent of the total—spent the majority of their careers as public defenders.
Age. President Trump appointed young judges to the bench, with his appellate court nominees having an average age of 47 when nominated—five years younger than President Obama’s appellate court nominees. This is important because younger judges serve for longer and therefore exert greater influence over the law. President Biden, unlike many past Democratic presidents, is taking a page from the Republican playbook and prioritizing youth; his first ten appellate nominees have an average age of just under 49.
Ideology. President Trump appointed a large number of quite conservative judges, many of them tied to the Federalist Society, the influential organization of conservative and libertarian lawyers. There’s no real equivalent to Fed Soc on the left—sorry, the American Constitution Society doesn’t count2—but President Biden is doing what he can to appoint liberal and progressive judges. In general, lawyers from the backgrounds that he’s prioritizing—public defenders, civil rights attorneys, and labor lawyers—are some of the most left-leaning in the entire legal profession. In the absence of a Fed Soc equivalent on the left to vet and bless his nominees, these backgrounds are decent proxies for identifying staunch liberals and progressives.
This brings us to the latest news: President Biden’s seventh round of judicial nominees, which the White House announced yesterday. The eight new nominees take his total of announced federal judicial nominees to 43. The nominees are as follows:
Judge Lucy H. Koh (N.D. Cal.), nominated to the Ninth Circuit;
Justice Gabriel P. Sanchez (California Court of Appeal, First Appellate District), nominated to the Ninth Circuit;
Judge Holly A. Thomas (L.A. Superior Court), nominated to the Ninth Circuit;
Judge Maame Ewusi-Mensah Frimpong (L.A. Superior Court), nominated to the U.S. District Court for the Central District of California;
Magistrate Judge Katherine Marie Menendez (D. Minn.), nominated to the U.S. District Court for the District of Minnesota;
Magistrate Judge Jennifer L. Thurston (E.D. Cal.), nominated to the U.S. District Court for the Eastern District of California;
David Herrera Urias, nominated to the U.S. District Court for the District of New Mexico; and
Judge Hernán D. Vera (L.A. Superior Court), nominated to the U.S. District Court for the Central District of California.
One thing that jumped out at me right away: of these eight, seven are already judges. That’s on the high side for a slate from the Biden Administration, which so far has nominated many fewer sitting judges compared to the Obama Administration.
In other respects, though, the group is similar to past Biden cohorts. For starters, the nominees have impressive academic and professional credentials. Five out of the eight graduated from top-14 or “T14” law schools, including three from Yale Law School. Six out of the eight served as law clerks to federal judges, four of them to circuit judges. Several of them served in the U.S. Department of Justice or worked as associates or partners at top Biglaw firms.
And of course there’s diversity, which the White House announcement emphasizes:
[T]his slate includes:
Three new Latino judicial nominees with diverse professional experiences. [Justice Sanchez, Judge Vera, and David Urias]
A nominee who would be the first Korean-American woman to serve as a federal appellate judge and the second AAPI woman to serve on the Ninth Circuit from California. [Judge Koh]
A nominee who would be the first Black woman to serve on the Ninth Circuit from California, as well as the second Black woman to ever serve on the Ninth Circuit. [Judge Thomas]
A nominee who would be the only active Black woman district court judge in any of California’s four federal district courts. [Judge Frimpong]
As the federal judiciary gets more diverse, some of these “firsts” are… not that exciting. Maybe the Biden Administration can give a federal judicial nomination to our son Harlan for his upcoming birthday, so he can be touted as “the first Black Latino Filipino Jewish male with the last name Lat-Shemtob” to ever serve on the federal bench. But kidding aside, without a non-Latino white male in the bunch, this new slate is definitely diverse.
Three of the nominees are for California-based seats on the Ninth Circuit, the largest federal appellate court in terms of the population and geographic area it covers, and therefore one of the most powerful—right up there with the D.C. Circuit. The Ninth Circuit, known for years as a liberal bastion, changed significantly during the Trump Administration, with an influx of ten new Republican nominees. In terms of active judges, the Ninth is now split 16-13. How will the Biden nominees, if confirmed, shift the balance?
In terms of the political party of the appointing president, there won’t be any change. The three judges whose seats are being filled—Judges William Fletcher, Richard Paez, and Marsha Berzon—were all appointed by President Bill Clinton, a Democrat.
But just as there’s a wide range of viewpoints within the Democratic Party, there’s a wide range of ideologies among Democratic appointees to the federal bench. And it’s fair to say that Judges Fletcher, Paez, and Berzon are three of the most liberal members of the Ninth. My guess, then, is that Judge Koh, Justice Sanchez, and Judge Thomas, if confirmed, would collectively nudge the Ninth a little to the right—not because they’re conservative, but just because they’d be replacing such extreme liberals. (We won’t find out which nominee is replacing which judge until the nominations are actually sent to the Senate, but we can compare the three nominees as a group to the three outgoing judges as a group.)3
Judge Koh, during her decade as a federal trial judge in the Northern District of California (the San Francisco Bay Area), hasn’t been a far-left jurist.4 Her most well-known cases have been fairly non-ideological matters related to the tech industry that dominates Silicon Valley, including the epic Apple v. Samsung patent litigation, antitrust litigation relating to the employees of tech giants, and FTC v. Qualcomm, also an antitrust case. And her experience prior to taking the bench, including stints as a Biglaw partner (McDermott Will & Emery) and as an assistant U.S. attorney, also suggests that she might be less reflexively anti-business in civil cases or pro-defendant in criminal cases than whoever she ends up replacing.
Justice Sanchez served in California state government for seven years before being appointed to the state appellate bench. Before that, he was an associate at Munger Tolles & Olson for five years. This background also doesn’t scream “left-wing judicial activist,” so my guess is that he could also end up being less liberal than his predecessor.
Of the three nominees, Judge Thomas might be the one most likely to match her predecessor ideologically. Like several other Biden nominees, she comes from a civil-rights background—her legal experience includes time at the NAACP Legal Defense and Educational Fund and the U.S. Department of Justice’s Civil Rights Division (during the Obama Administration)—and civil-rights lawyers tend to skew to the left (unless they’re focusing on rights like, say, free exercise of religion). But again, given just how liberal Judges Fletcher, Paez, and Berzon are, I think at most Judge Thomas won’t move the needle either way.5
Turning now to the district court nominees, three are for the 18 vacancies in California that are considered “judicial emergencies,” per Nate Raymond of Reuters (via How Appealing). This means, in a nutshell, that the vacancies are in overburdened courts that are desperately in need of more judges. So it’s good that the Biden Administration is taking action.
Over the summer, when Democrats in the House proposed adding more than 200 new district judgeships around the country, some California lawyers rolled their eyes, as reported by the Daily Journal. Why? The idea of adding 36 district court seats in California, at a time when 18 existing vacancies had no nominees, struck some as… a little rich.
Jeremy Rosen, a prominent appellate lawyer and partner at Horvitz & Levy, was one of the lawyers quoted by the Daily Journal. Last month, he shared the piece on LinkedIn, with these additional comments:
I was quoted in this article discussing various legislative proposals to add more district court judges particularly in California. I pointed out that it was unusual to discuss creating new judges when the party in power still hadn’t even nominated anyone to fill the 18 vacancies that already exist in California and have in many cases existed for 4 years or more. These vacancies are causing incalculable harm to access to justice and the rule of law. Then-Senator Kamala Harris was solely responsible for refusing to let most of those vacancies be filled for four years.
During her time as California’s junior senator, Harris blocked a number of highly qualified, consensus nominees who had support from both sides of the aisle—including Jeremy Rosen himself. But in his LinkedIn commentary, Rosen made clear that this issue is much bigger than the fate of any individual nominee:
Under the common sense idea that if you break it, you buy it, it is shameful that her administration still refuses to nominate anyone to fill these vital positions after she broke the federal courts in CA. Real people are suffering as their cases linger due to an epic judicial crisis. There are many highly qualified and principled left of center lawyers and judges in CA that could readily be nominated by President Biden. Judicial nominations are being made all across the country, yet California continues to suffer. Once those vacancies are filled, then it would be appropriate to consider adding much needed additional judgeships which CA also needs.
So here’s hoping that the Senate, when it returns later this month from recess, acts quickly on the three California district court nominees. The Ninth Circuit vacancies might be sexier, but the vacancies on the California trial courts are a much bigger problem in terms of the fair and efficient administration of justice. Even if these three nominees are confirmed to their respective district courts, California will still have a dire shortage of federal trial judges, as noted by Meghann Cuniff of Law.com.
And here’s hoping that the Biden Administration, which has moved with impressive speed on judicial nominations generally, comes up with more California district court nominees very soon. The Golden State has shortages of many things—water, affordable housing, healthcare workers—but smart liberal lawyers is not one of them.
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Many of Trump’s campaign promises never came to fruition—we never got that “big, beautiful wall,” paid for by Mexico—and many of his actions while in office were promptly reversed by the Biden Administration. But his judges, including his three Supreme Court justices, will serve for decades to come.
The American Constitution Society (ACS) doesn’t have nearly the same influence or stature as the Federalist Society. For an analysis of why that’s the case, see this Politico piece by Evan Mandery, Why There’s No Liberal Federalist Society.
Note that the Biden Administration previously nominated Jennifer Sung, a labor lawyer, for the Oregon-based seat of Judge Susan Graber. Judge Graber is one of the most moderate members of the Ninth Circuit, so replacing her with Sung will probably move that seat leftward.
Perhaps Judge Koh has been trying to stay out of trouble to maximize her chances of elevation. She has long been viewed as a candidate for promotion—and she was in fact nominated to the Ninth by President Obama in 2016, but never got a vote on the Senate floor.
Fun fact: if Judge Thomas is confirmed, the Ninth Circuit will have two Judge Thomases, the other being Chief Judge Sidney Thomas. It already has two Judge Smiths, Judges Milan Smith and N. Randy Smith. [UPDATE (4:07 p.m.): The Ninth also has two Judge Nelsons, Judges Dorothy W. Nelson and Ryan Nelson. (And there was also Judge Thomas G. Nelson, but he passed away in 2011.)]