Biden judicial picks reignite contentious Senate process

Diverse nominees put spotlight on the dynamics of racial and gender diversity in federal courts

Judge Ketanji Brown Jackson is nominated for the U.S. Court of Appeals for the D.C. Circuit, a position seen as one step removed from the Supreme Court. (Bill O'Leary/Getty Images)
Judge Ketanji Brown Jackson is nominated for the U.S. Court of Appeals for the D.C. Circuit, a position seen as one step removed from the Supreme Court. (Bill O'Leary/Getty Images)
Posted March 30, 2021 at 10:37am

President Joe Biden announced a diverse slate of judicial nominations Tuesday that will test the temperature of the Senate’s judicial confirmation process now that it is back under Democratic control.

The most closely watched pick will be Judge Ketanji Brown Jackson for the influential federal appeals court in Washington, which attracts controversy because it handles cases of national sweep on environmental, labor, immigration and other policy issues.

Past nominees to the U.S. Court of Appeals for the D.C. Circuit have sparked historic partisan showdowns, such as the one in 2013 that prompted then-Majority Leader Harry Reid and Democrats to change long-standing Senate confirmation rules and ease the process.

But the set of Biden nominees also will put front and center the dynamics of racial and gender diversity in the federal courts. Jackson’s confirmation would move her up to an appeals court that is one step from the Supreme Court. Biden during the presidential campaign pledged to nominate a Black woman to the high court if a vacancy occurs.

The White House, in announcing the 11 judicial nominees, noted that several are “groundbreaking.” That includes three Black women chosen for circuit court vacancies, and potentially the first Muslim American federal judge, the first Asian American Pacific Islander woman on the federal district court in Washington, and the first woman of color on the District of Maryland.

Advocates made clear Tuesday that will be a focus of the judicial confirmation process and alluded to Republican opposition to other minority women nominees, including two picks for Justice Department leadership that are still in the confirmation process.

“We have already seen Senate Republicans’ willingness to maliciously smear Biden’s nominees, particularly targeting those who are not white men,” said Nan Aron, the president of Alliance for Justice, a liberal advocacy group that focuses on judicial nominations. “We will not abide their callous attacks.”

Jackson, a former clerk for Supreme Court Justice Stephen G. Breyer, has been on the federal district court in Washington since President Barack Obama appointed her in 2013. The Senate confirmed her by voice vote.

She previously worked as an assistant federal defender in Washington and was on the U.S. Sentencing Commission during the Obama administration, which is also a Senate-confirmed spot.

Republicans slowed down judicial confirmations when they had control of the Senate in the last two years of the Obama administration. But they then streamlined the confirmation process during President Donald Trump’s term, which now could ease Democratic efforts to confirm Biden picks since they need just 50 votes.

And Trump’s nominations, particularly for Justices Brett M. Kavanaugh and Amy Coney Barrett, boiled over with partisan acrimony in Judiciary Committee hearings and votes.

Liberal advocacy groups, which have urged Biden to broaden the professional and racial diversity of the federal courts after four years of mostly white men appointed by President Donald Trump, gave their approval to all 11 judicial nominees announced Tuesday.

Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund, called the first list “historic” and pointed out that nine of the 11 picks are women.

“This list powerfully affirms that nominees who are racially diverse and whose professional background reflects a broad range of practice are available to serve on the federal bench,” Ifill said in a news release. “Such diversity will greatly enhance the judiciary and judicial decision-making.”

The timing of Biden’s announcement also raises questions about how much Democrats, particularly new Senate Judiciary Chairman Richard J. Durbin of Illinois and Majority Leader Charles E. Schumer of New York, will focus on judicial nominees among many competing interests for committee and floor time.

The White House highlighted Biden’s urgency in the announcement.

“The intent to nominate 11 individuals today is faster than any President in modern history,” the announcement stated. “With respect to Circuit and District Courts, none of the last four administrations had nominated more than two candidates by this point in their presidency.”