The Biden administration is poised to 'fix' the judiciary after its Senate majority

A Democratic-controlled Senate could help undo what Trump has sown during his record-breaking speed of appointment

US federal courts look very different from two years ago. Since taking office, Joe Biden has made it a top priority to name the various judicial candidates who have helped change the face of the nation's court system.

Democrats have used their slim majority in the Senate to confirm about 100 of Biden's judicial nominees — including Justice Ketanji Brown Jackson, the first black woman to serve on the supreme court. After retaining control of the Senate in the midterm elections, Democrats are well positioned to appoint even more federal judges in the next two years. But even with a party-backed Senate majority, Biden has a long way to go before he can match Donald Trump's historic impact on the federal judiciary.

Federal judges bear a unique responsibility within the US government system because they have lifetime appointments. They often served on the bench for decades, passing far-reaching decisions on everything from abortion access to environmental policy to gun safety. The crucial federal court of appeals often serves as the last stop before a case goes to the supreme court.

So far, Biden has made impressive strides getting liberal judges confirmed in federal court. In 2021, the president oversees more first-year federal court appointments than any president since John F Kennedy, according to analysis from Russell Wheeler of the Brookings Institution. Biden's two-year track record in judicial confirmations will surpass most of his recent predecessors.

"The numbers we're seeing are staggering," said Paul Gordon, senior legislative adviser for the progressive group People for the American Way. "[Leading Democrats] have clearly recognized that improving our courts is a national priority, and I'm very pleased to see that."

In addition to their sizeable numbers, Biden's judicial candidates are noted for their racial, gender, and professional diversity – especially considering how long the US supreme court has been dominated by white men. Nearly three-quarters of Biden's trial nominees are women, and nearly two-thirds are people of color. Biden also nominated many former public defenders and civil rights lawyers, who have historically been underrepresented among federal judges.

That professional diversity will help ensure equal application of the law, said Christopher Kang, co-founder and chief adviser to progressive group Demand Justice.

“When you have different people who have different experiences and have different clients and have different careers in advocacy on the other hand, it kind of provides a greater understanding of the law and hopefully leads to a more equitable outcome,” said Kang. . .

Senate majority leader Chuck Schumer has successfully advanced dozens of Biden nominations through the chamber despite attempts by Republicans to block or at least delay confirmation. Because the Senate was evenly split over the last two years, Democrats and Republicans hold the same number of seats on the judiciary committee. Republicans used that evenly divided power to create a deadlock on the committee vote and force Democrats to implement additional time-consuming procedural steps to approve the judicial nomination.

With Raphael Warnock's victory in this month's Georgia special election, the Democrats will earn a seat on the judiciary committee. Even with Kyrsten Sinema's unexpected announcement this month that she would change her party affiliation to become an independent, Democrats are still expected to have a majority on Senate committees.

"We can breathe easy," Schumer said the day after Warnock's victory. "Obviously the judges and nominees will be much easier to put on the bench."

Trump was able to appoint so many conservative justices in part because the Republican Senate leader, Mitch McConnell, refused to consider many of Barack Obama's nominees in the final two years of his presidency. The practice empowered Trump to nominate one justice and fill several seats on the federal appeals court as soon as he takes office. By the time Trump stepped down, he had nominated more than a quarter of all active-serving federal judges.

The impact of the judge's decision was felt across the country. In September, a Trump judge sparked protests by granting the former president's request to have a "special expert" handle classified documents seized by the FBI from his Mar-a-Lago estate. Trump appointees have also played a key role in blocking the Biden administration's policies on the coronavirus pandemic response and handling of the US-Mexico border.

Trump's imprint on the judiciary is most pronounced in the supreme court, where a third of justices were appointed by the former president. In the past year, courts have limited the federal government's ability to set climate policy and overturned a New York law aimed at regulating the public transport of firearms. Most notably, the court overturned half a century of precedent by ending federal protections for abortion access.

"We have spent years talking about far-right judges and the damage they are doing to our community, our families, our rights," said Gordon. "But there's nothing like making our words a reality to make people sit up and take notice."

The ruling has made Democrats even more determined to leave a lasting mark on federal justice, and the Senate may be able to devote more time to that effort starting next month.

Once Republicans take control of the House in January, many bills passed by the Senate will probably flop in the lower house. With their legislative agenda stalled, Democrats in the Senate may turn their attention to advancing a judicial nomination, which does not require House approval.

"I don't expect to see a lot of legislation in the next few years... but the Senate will have plenty of time to focus on judicial nominations," said Gordon. “With an absolute majority, they will be able to use that time very efficiently.”

The Democratic Senate majority remains narrow, which could still present a challenge in efforts to quickly confirm a judicial nominee. Just two absences or a Democratic "no" vote is enough to overturn the confirmation. Kimberly Humphrey, legal director for federal courts at Alliance for Justice, said the Democrats' 51-49 majority "wasn't a slam dunk at all," even as she stressed the importance of Warnock's victory.

To help ease the confirmation process for some candidates, Humphrey's group and other progressive organizations have asked Senate Democrats to reconsider "blue slip" practices.

The blue slip policy gives home state senators the option to block district court nominees from even receiving a hearing, which makes it harder for Democrats to fill vacancies in states with at least one Republican senator. As Biden seeks to equal Trump's judicial record, a number of progressives are demanding a hearing for the nominee for district court despite the objections of their home state senator.

Depending on the potential for blue slip reform and the number of vacancies created in the next two years, Kang believes Biden could be on the right track to make history of his own.

"President Biden has as many opportunities to confirm judges as President Trump does," Kang said. "He's definitely on his way to leaving his mark on the bench."

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