Sunday, January 31, 2021

Biden Urged to Offset Trump's Legacy in U.S. Courts

          President Joe Biden has worked hard during his first ten days in the White House to undo major parts of the poisonous legacy that Donald Trump left behind by, for example, repealing Trump’s ban on transgender military service members and repealing the travel ban that Trump instituted against predominantly Muslim countries in his first weeks in office.

            Biden faces daunting obstacles, however, in undoing Trump’s most lasting legacy: the appointment of more than 225 judges at all levels of the federal judiciary, including three Supreme Court justices, nearly one-third of the judges on federal courts of appeals, and almost one-fourth of the country’s federal district court judges.

            Those life-tenured judges—several of them appointed in their 30s and many appointed in their 40s—will serve through Biden’s presidency even if he is re-elected to a second term and perhaps even past the mid-century mark in 2050. To counter their influence and the obstacles Trump judges might pose to Biden’s policies, Biden is turning to a familiar Washington device: a special commission on court reform staffed by the White House and reporting directly to the White House.

            Some of the commission’s members have been selected, according to an article in Politico by reporter Tyler Pager, but its mandate remains uncertain. Before his election, Biden was noncommittal on one step favored by liberal and progressive groups: expanding the number of justices on the Supreme Court to offset the ideological shift resulting from Trump’s three right-wing appointments to the nine-justice bench in his single term as president.

            Meanwhile, without addressing Supreme Court expansion, more than 70 liberal and progressive groups have joined in a “statement of principles” drafted by the Alliance for Justice that urges Biden to support legislation creating new judgeships, to fill existing vacancies “expeditiously” with demographically and professionally diverse nominees, and to fast-track nominations through the Senate just as Republicans did during Trump’s presidency

            Trump’s success in transforming the federal judiciary was a political coup of sorts, many years in the making, thanks to tactics by the Senate’s Republican leader, Kentucky’s Mitch McConnell, in slowing President Obama’s ability to fill federal judgeships and expediting confirmation of Trump’s nominees. Thanks to McConnell’s tactics, Trump was greeted with more than 100 judicial vacancies in his first weeks in office. By contrast, Biden now has around 50 vacancies to fill, including three retirements announced since he took office.

            Obama, elected twice with a majority of the popular vote, appointed 311 federal judges in eight years in the White House, compared to 226 for Trump in four years. With a Republican majority, McConnell all but shut down Senate confirmations of Obama nominees in the Democratic president’s last two years in office. Most famously, McConnell refused during the 2016 presidential campaign to convene a hearing on Obama’s nomination of federal appeals court judge Merrick Garland to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia.

            Earlier in Obama’s presidency, the Democratic-majority Senate had confirmed his two Supreme Court appointees, Sonia Sotomayor and Elena Kagan, with more than 60 votes for each. By contrast, Trump’s three Supreme Court appointees – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were all confirmed with fewer than 60 votes in the 100-vote Senate. Barrett was confirmed in October 2020 by a party-line 52-48 vote: she became the first Supreme Court nominee in more than a century to be confirmed without a single vote from a senator of the opposing party since Stanley Matthews’ 24-23 confirmation in 1881.

            Trump reversed the advances that his three previous predecessors – Obama, George W. Bush, and Bill Clinton – had made in diversifying the federal judiciary, according to a compilation by John Gramlich, a senior writer with Pew Research. Out of 226 Trump judges, only 37 – or 16 percent -- were non-white: nine blacks, nine Hispanics, 13 Asians, and six “other.” More than one-third of Obama’s judges – 115 out of 320 or 36 percent – were nonwhite. Bush named 58 non-white judges out of a total of 264, or 18 percent. Clinton named 90 nonwhite judges out of 367, or 25 percent.

            With Trump still in the White House, his judges were having a definite impact in closely divided cases in federal courts, according to a compilation by the progressive advocacy group People for the American Way. Five Trump appointees on the Eleventh U.S. Circuit Court of Appeals provided most of the votes in a 6-5 decision that upheld a Florida measure blocking ex-felons from regaining the right to vote. Trump judges voted in other cases to limit voting rights: notably, Gorsuch and Kavanaugh cast decisive votes in a 5-4 decision that prevented Wisconsin from extending the deadline for counting absentee ballots in the state’s primary elections and in a later 5-3 decision that barred curbside voting for disabled and elderly voters in Alabama.

            With Biden now in the White House, a Trump-appointed judge acted in a lawsuit filed by the state of Texas to block Biden’s plan to pause deportations for 100 days at the southern border. U.S. District Court Judge Drew Tipton, on the bench for only six months, issued a nationwide injunction on Jan. 28 to block the Biden plan. The Republican politicians who complained during Trump’s presidency that district court judges have no authority to issue nationwide injunctions raised no concerns about this one.

In the meantime, Biden’s only opportunity to counter Trump’s influence on the federal judiciary depends on court expansion, according to one leading advocate. “The entire agenda of what needs to get done is in jeopardy thanks to stolen federal courts,” Aaron Belkin, director of Take Back the Court, remarked to the Politico reporter. “We know,” he added, “that court expansion is the only strategy to allow the administration to solve the problems facing the country.”



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