Judicial Nominations

Biden Administration Seeks to Avoid Obama Administration Missteps on Judicial Nominations

The BIden-Harris transition team is already prioritizing judicial nominations.


The Obama Administration was notoriously slow to make judicial nominations. Even where there was no need to consult with home-state Senators (as with D.C. vacancies), the White House put forward nominees at a tepid pace, resulting in fewer and slower confirmations than one might have expected. The nomination pipeline was rarely full, so it was easier for Senate Republicans to slow things down, particularly once Mitch McConnell became Senate Majority Leader.

It is unclear whether President Biden's nominees will face a democratic or a Republican Senate, but there are early signs the Biden Administration wants to hit the ground running when it comes to judicial nominations, so as to begin to undo the Trump Administration imprint on the federal judiciary.

The Huffington Post reports that incoming White House counsel Dana Remus has sent a letter to Democratic Senators requesting that they submit names of potential nominees for existing district court vacancies "as soon as possible" and no later than January 19. In other words, the Biden Administration wants to be able to start reviewing potential nominees on day one.

As of today (12/30) there are a total of 49 current judicial vacancies and five announced future vacancies. In all likelihood, these numbers will increase in January as additional judges announce plans to retire or take senior status. It is also likely that some judges will announce retirements upon the confirmation of their successors, so as to prevent extended vacancies on their courts. It is also possible there may be additional judgeships, particularly if Democrats manage to take control of the Senate. The Judicial Conference has requested additional seats on some courts.

The Remus letter makes clear this is not simply about current vacancies. It further asks Democratic Senators to quickly identify additional nominees "within 45 days of any new vacancy being announced, so that we can expeditiously consider your recommendations." This is an aggressive time-table, particularly for Senators from states where it is common to rely upon advisory commissions to identify and vet potential nominees. Having served on Ohio's commission, I can attest it would be quite difficult to meet such a deadline while performing the traditional degree of vetting and review.

In addition to seeking early input from Democratic Senators, the letter indicates that the Biden Administration would like to draw nominees from a broader pool of potential jurists. According to the letter, the Biden team is "particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life." Progressive activist groups have been urging such a broader focus. The lack of federal judges with meaningful criminal defense experience, in particular, is a widely recognized problem. As this Cato study noted, there are lots of former prosecutors on the federal bench, but relatively few former public defenders.

Without question, control of the Senate will make or break the Biden Administration's ability to make an early mark on the federal judiciary. A Democratic Senate will begin considering and confirming Biden nominees much more quickly than a Republican one. That said, it still makes sense for the Biden White House to begin moving now.

The more nominees there are in the pipeline, the more pressure there is to let some of them through. For this reason, the Biden White House will want to put forward names as quickly as it feels comfortable doing so. It will also want to put forward names that have local GOP support, where possible.

Beginning the identification and vetting of potential nominees early will also put the Biden White House in a stronger position to negotiate over packages of nominees. Though rarely reported, the Trump White House was quite effective at putting together bipartisan packages of nominees in states with Democratic Senators who were willing to negotiate. This is how some key vacancies in states like Illinois and Hawaii were filled without Democratic opposition. While the political dynamic will be somewhat different, a Biden White House would be well advised to make such deals where possible.

A few other tidbits worth noting. First, the letter focuses on district court nominees, suggesting the Biden Administration intends to take the lead on appellate nominees. This is what the Trump Administration did, and (in my view) it makes sense. Local interests are much stronger when it comes to district court nominations.

Second, even before this letter was sent, progressive activist groups had begun working to help fill the roster of potential nominees. The American Constitution Society, for one, has sent out a fund-raising appeal noting that it is "uniquely positioned to build the bench of the next generation of progressive leaders in the law" and boasting that it had "developed a highly qualified pool of legal professionals and delivered the names to President-elect Biden's transition team just hours after he became the President-elect." Other groups have reportedly made similar efforts, though these lists of potential nominees have not been made public.

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  1. Obama saw no point in having nominees wait two or three years and then be turned down, when the pipeline was already clogged due to Republican obstruction. It wasn’t fair to the nominees.

    1. News flash — it takes two to tango.

    2. How long did Miguel Estrada have to wait, O apostle of fairness.

      1. You forgot Marc Rich.

      2. The martyr whose legacy lives forever. At some point the alleged and bad faith “debt” is paid. It’s paid now, and, horror of horrors, perhaps Biden will nominate a black man or even woman and Ilya Shapiro will faint.

    3. Maybe he shouldnt’ have sent bolsheviks up for nomination….we all know his administration was very anti Italian and anti Catholic…progressives seem to have a certain hatred for Italians…never could figure that out as an Italian American. After all we were not in Russia or supporters of the Czar.

      1. Now this is a new one!

      2. “Bolsheviks?” Is this Josh Hawley posting or Louie Gohmert?

        1. Bolsheviks…cultural marxists…whatever…they have been holding back Italian Americans for decades…in academia, the media, non-profits and so on…why no Italian Americans running media networks..why so few if any at WAPO, NYT, ABC, NBC, CNN…or any hollywood studio? Why so few Italian Americans in academia? Why so few at Ivy League? Why so few in any Democratic Admin? Let’s be honest..certain groups have gone out of their way to marginalize Americans of Italian background. Mostly due to their conservatism and not playing the narrative to be quiet and take accept your role..a cop…a fireman…a factory worker..but never head of say Goldman Sachs, Paramount, NBC, or any Social Media Company.

    4. “Obama saw no point in having nominees wait two or three years and then be turned down, when the pipeline was already clogged due to Republican obstruction.”

      Obama had a Democratic Senate for the first 6 years of his presidency. The GOP only sporadically opposed Obama’s judicial nominees, until 2015 when they won control of the Senate and exacted a bit of political payback for Senate Democrats abolishing the filibuster for nominations in 2013 to push through a few of Obama’s more leftist judicial nominees.

      1. The Dems had to abolish the filibuster because the GOP opposition was anything but sporadic.
        Do you think they did it for fun?

        1. Through December 22 of the 4th year of Obama’s presidency, there were 8 cloture votes on his judicial nominees. and only 13 of 171 nominees were confirmed with 25% opposition. In contrast, at the same point in Trump’s presidency, 201 of his 234 confirmed judicial nominees required cloture votes, and 110 received 25% opposition. The level of opposition didn’t have much to do with the nominee’s qualifications, since even those with Well Qualified ABA ratings, District Court nominees with Blue Slip approval from home-state Democratic Senators, and Obama nominees renominated by Trump had to run the Senate Democrats’ gauntlet.

          1. The appropriate metric would be Bush, not Trump, eh?

    5. In reality the time from nomination to confirmation was no different for Obama than previous Presidents. He just didn’t bother nominating.

  2. Let’s see what happens when no blue slips are returned by Team R.

    Also, it is a given that every single judicial nominee from a Biden administration will require a cloture vote, regardless of whether Team R controls the Senate or not. After all, that behavior was normalized in the last four years. Now we will see what happens when the shoe is on the other foot.

    1. Nope. The Democrats nuked the filibuster for lower court nominees under Obama and the Republicans nuked it for Supreme Court nominees under Trump. No filibuster of judicial nominees means no cloture votes.

  3. There will be no Biden judges. Period.

  4. Every administration that I can remember was known by the name of the president. The Reagan administration. The Kennedy administration. This article refers to the administration prior to this one as the Obama administration.

    Why is the incoming administration so frequently hyphenated as the Biden-Harris administration?

    1. Harris is easier to demonize due to her skin color. So Republicans include her name.

      1. Well, that’s one explanation.

        1. Pretty accurate, wouldn’t you say?

          1. Not necessarily. Harris herself kept referring to their future administration if they won the election as the Harris administration.

            She did it so much that Biden ended up making the same flub on a couple of occasions.

            Rs could be doing it now to either make fun of those flubs or because those flubs left the impression that Harris is already planning to invoke the 25 amendment against Biden so she can take over as President.

            1. Biden has also called her, repeatedly, as President-elect.

      2. “Harris is easier to demonize due to her skin color. So Republicans include her name.”

        Numerous official Biden transition documents use the “Biden-Harris Administration” formulation. It’s not a GOP thing.

      3. I assumed it was because both Harris and Biden had made references to the “Harris/Biden” administration.

        I guess “one drop” is pretty important on the left, because that’s about how black Harris is; You’d never guess she was “black” if she didn’t make a point of claiming it. The Indian part of her ancestry is pretty obvious.

        She might have more black blood than Warren has American Indian, though.

      4. Captcirisis, one of these days you’re going to need to look past color of someone’s skin and look at the content of their policies. Maybe you should start now.

        1. This isn’t even a case of looking at the color of somebody’s skin, though; That would imply that Harris looks black, and she doesn’t: She looks Indian. You’d never guess she was “black” if she didn’t insist on calling herself that, the family running our local Indian grocery look more plausibly “black” than she does.

          It’s more a case of ‘identifying as’ black, I guess.

    2. Tecumseh’s curse?

      What? Too soon?

  5. Mark my words

    Kamala Harris will be President within 6 months

    1. Ok. How will this happen?

      1. Two possibilities.

        1. Biden kicks the bucket.

        2. Harris pulls out the 25th amendment on the grounds that Biden is suffering from dementia.

        1. Note: I expect Harris to try #2, though I don’t really expect her to succeed with it.

          1. I expect her to wait on that until at least 2 years have passed; That way she can legally serve two terms of her own.

            1. Maybe.

              She’ll either pull that stunt within a week or two after the inauguration or she will wait at least 2 years.

              1. I’ll go with Brett Bellmore on this one. I’ll guess January 21-31, 2023. That way she can run for election & relection giving her almost 10 years in office

                One way or another, the question is not if the 25th amendment will be invoked but when.

                1. Maybe you and Brett are correct. However, Harris several times on the campaign trail referred to the actions of the “Harris administration” in saying what they would do if they won the election.

                  To me, that suggests and almost immediate attempt at a 25A coup.

                  1. and->an

                    Why isn’t there an edit button?

                  2. Suggests to me she plans on running the joint, that doesn’t mean officially, though. With Biden taking a nap in the afternoon, he’s going to be doing a lot of delegating.

                    Power behind the throne for 2 years and a day…

                    1. To me, her constantly calling it the Harris administration, not the Biden administration or even Biden-Harris administration, very much says she plans on running things officially.

  6. Instead they will strive to make all new, never before seen, unprecedented mistakes.

  7. I can bet no Catholics, no Italians, No Irish, No Greeks, No Germans, No Polish….but plenty of the other “tribes” that the Dems claim are underrepresented. I do wonder if certain groups that are over represented will continue to be so by the Dems…that is what usually occurs with the left..certain groups are always more equal than others..

    1. Jewish or Gentile, so long as they are able and willing to fulfill their judicial oaths/affirmations, they’ll be great.

      If there’s discrimination, it will be if the President tries to weed out the good judges.

    2. Breaking: Biden is Catholic. Also lrish background. Is this news to you?

      1. Breaking: Biden was raised Catholic.

        Fixed that for you. He ain’t Catholic anymore.

        1. Billy, pretty sure you don’t get to do excommunications.

    3. Titus, if you knew anything about Delaware politics, you would know that Catholics, Italians, Irish, and Poles, (plus blacks) have long been the principal, “tribes.” Biden fits the Irish Catholic part, and is long-time comfortable with all the rest.

      1. Well they don’t seem to do well in the national DNC these days do they? I saw this occur at the local party level in Central NY as a kid. My parents were active members and even held local office..in the late 70’s things begin to change..NYC Jewish types started to show up and run the local elections and it wasn’t about economics to them but “diversity”…and an almost contempt for working class Italians and Irish.

  8. There are no Obama or Trump judges, so there won’t be Biden judges, either. QED.

  9. The problem with rushing the process is that stuff will be missed — only to be found by an intrepid conservative muckraker. Raphael Warnock and his summer camp come to mind as an example.

    The Bite Her Arse Admin is inevitably going to get burned…

    1. Pfft. An intrepid conservative mudraker might find stuff, but what does it matter if the media cover the story? With a pillow, until it stops moving…

    2. So I looked into this story.

      Warnock was the pastor a the church, I don’t see evidence that he was the camp’s director or anything. There were allegations, of a camper being forced to sleep outside, also having some urine thrown on him.

      While police were questioning the counselors, Warnock insisted they have counsel present because they were pretty much all teenagers. The police arrested him for interfering, and the charges were dropped with the DA chalking it up to a “miscommunication.”

      Ed, that’s not a scandal, that’s a desperate attempt to say Warnock and child abuse in the same sentence.

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