The Alliance for Justice’s Nan Aron has a new op-ed in USA Today, noting how easy it might be for Democrats, facing historic crises, to “let judicial appointments fall off their list of priorities.” That, of course, would be a mistake.
After highlighting the many pending challenges — the pandemic, the economy, threats of domestic violence, the climate crisis, et al. — Aron added: “But at the heart of addressing any of this — and securing lasting prosperity and justice for Americans for decades to come — are our courts. This is the opportunity for Senate Democrats to appoint forward-thinking, qualified judges who better reflect the people they serve.”
There’s every reason to believe Democrats agree and recognize the importance of the issue. NBC News had a good report along these lines last week:
President Joe Biden and Senate Democrats are vetting civil rights lawyers and public defenders to nominate as judges, embarking on a mission to shape the courts after Republicans overhauled them in the last four years, according to senior party officials and activists. Democrats have a wafer-thin Senate majority that gives them control over appointments. They believe they have two years to make their mark and fill a growing number of vacancies before the midterm elections, where the party in power historically loses seats.
Over the course of Donald Trump’s four years, Senate Republicans prioritized judicial nominees above almost every other consideration. The campaign was as relentless as it was effective: the former president managed to appoint about 230 judges to the federal courts — many of them comically young, nearly all of them inexorably conservative. That’s not as many as his recent two-term predecessors, but it was a striking tally for a failed one-term president who never won the popular vote.
Democrats will want to borrow the playbook, but it won’t be easy. For one thing, if historical models are any indication, the party will likely struggle to hold onto the Senate majority after next year’s midterms. That gives Dems 23 months to vet, scrutinize, consider, and confirm as many judicial nominees as possible, certain in the knowledge that Mitch McConnell would bring the confirmation process to a halt if given the chance.
What’s more, McConnell and Trump didn’t leave that many judicial vacancies to fill. This total will, however, soon change, as federal judges who remained on the bench during Trump’s term quickly discover the virtues of retirement.
Indeed, just yesterday, U.S. District Court Judge Emmet Sullivan — whose name may be familiar given his role in high-profile cases, including Michael Flynn’s — reportedly agreed to take senior status in the spring, creating a key vacancy for Biden and Senate Democrats to fill.
There’s also, of course, Attorney General-nominee Merrick Garland to keep in mind: he’s currently a judge on the D.C. Circuit, which is arguably the nation’s second most important bench. Once he’s confirmed to lead the Justice Department, that’s another important vacancy.
Sen. Sheldon Whitehouse (D-R.I.), a senior member of the Judiciary Committee, told NBC News last week, “I call it ‘repair the courts.’ We have to make sure that we are filling vacancies with credible, neutral, fair-minded judges, rather than the political operatives that we saw so many of in the Trump years.”
The Rhode Island Democrat added, “The prospect that we won’t always have a Democratic president and a Democratic majority in the Senate should motivate us to move with real dispatch this time.” Whitehouse described filling every judicial vacancy by the end of 2022 “a very prudent goal” to fill.
To that end, NBC News’ report added that White House counsel Dana Remus reportedly wrote a letter to Democratic senators, urging them to “recommend candidates for district court vacancies within 45 days of a vacancy, so they can ‘expeditiously’ be considered.”
This won’t generate the same kind of headlines as high-profile legislative fights or major executive actions, but it’s a priority that will have a lasting national impact.
