What will historians say Joe Biden and Donald Trump had in common? Their greatest presidential legacy could end up being how they shaped the federal justice system.
Despite failures on other fronts, Trump has appointed more than 200 judges, including three Supreme Court justices – who may soon vote to overturn Roe v. Wade, a longtime target of the conservative legal movement. With a 42% Trump-style approval rating, President Biden finds himself in rough waters. But on December 18, Biden witnessed the confirmation of his 40th federal judge – the highest number in a first year since Ronald Reagan.
And it’s not just numbers. Biden and those in his administration who choose judges, including White House attorney Dana Remus and Chief of Staff Ron Klain, are smart and strategic. Instead of following the approach of the Obama administration, which hasn’t won many confirmations, the Biden administration is taking a page out of Trump’s playbook by aggressively advancing on nominations – and using the process to do so. advance political and political interests.
First, Biden prioritizes diversity: So far, around 80% of confirmed Biden nominees have been women and 65% have been people of color. Diversity strengthens the judiciary because diverse perspectives improve decision-making. Various appointees are also helping Biden and the Democratic Party, bolstering the support and enthusiasm of two key constituencies: women and minorities (some of whom have recently moved to the right).
There is still room for more progress. The Mexican American Legal Defense and Educational Fund recently noted that Biden’s six applicants this year in the Central District of California included only one Latino, for a district whose population is now 46% Latino and is expected to be. more in the decades of 2021 nominee terms. LGBTQ representation also lags in California. But when it comes to the various presidential candidates, Biden is still far ahead of Trump, whose appointees were predominantly white and male (84% white, 76% male).
Second, just as Trump chooses extremely conservative candidates, Biden selects extremely liberal candidates. In the absence of an organization as influential as the Federalist Society to verify ideological good faith, his administration has skillfully found professional attorneys for progressive politics, turning to areas whose practitioners tend to be very liberal: public defenders, lawyers. of public interest and lawyers representing unions. It’s too early to say anything definitive, but I predict Biden’s judges will be the most liberal since those of President Jimmy Carter.
Finally, and strategically, Biden emphasizes young people. As George Washington University law professor John Collins Jr. writes in an article analyzing Biden’s candidates, âPresident Biden’s freshman judges suggest Democrats are finally coming of age too. serious than the Republicans. â¦ At (about 48), the average age of his freshman candidates is eight years younger than senior circuit judges in President Obama‘s first year. This relative youth is important because, thanks to seniority, young judges sit longer. So even seemingly small age differences can lead to big differences in legal influence over time.
So the Biden administration’s selection of young liberal judges is good for the administration and the Democratic Party. Is it good for justice?
There is – or should be – a difference between law and politics. The law should not be, to paraphrase Carl von Clausewitz’s commentary on war, the continuation of politics by other means. Instead, judges should do their best to apply the law to the facts of the cases before them, as objectively as possible. The goal of a judge should be to dispense justice under the law, not to advance an ideological agenda. Unfortunately, judges on both the right and left have too often treated the law as a vehicle for partisan politics. The process of selecting judges could bear some of the blame.
It might be better if the judiciary in Biden – and all presidents, for that matter – focused relatively little on youth and ideology.
This was essentially the approach of the Obama administration, partly because it was Obama’s own centrist inclination and partly because at the time when the filibuster was in effect, it was impossible to confirm judges too far from the center.
To avoid further politicization (if at all possible), we could consider structural changes to the appointment process for future administrations.
First, we could bring back the filibuster of judicial candidates, eliminated for lower court judges in 2013 (when Democrats controlled the Senate) and Supreme Court judges in 2017 (when Republicans controlled the Senate). When the systematic obstruction was in effect, judicial candidates did need 60 votes for confirmation. This ensured that any successful candidate would have at least a few votes from the other party, making it difficult to appoint extreme or unqualified judges. (Of course, bringing back the filibuster would also require a return of senators voting for the other party’s judicial candidates as long as they are qualified, ideological disagreements notwithstanding – which is, admittedly, far away. of today’s party line votes on clearly qualified candidates.)
Second, we could consider something for lower court judges that is currently the subject of extensive discussion for Supreme Court judges: tenure. If the judges sat, say, 18 years rather than life, the parties would be under less pressure to nominate the youngest and more ideological candidates, as the current system encourages them. But realistically, nothing will happen anytime soon to change breeding strategies.
President Biden, I have a perfect choice for you: my 4 year old. He’s young, smart, diverse – and very, very opinionated.
David Lat is the author of Original Jurisdiction, a newsletter on the law and the legal profession. From the Los Angeles Times.
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