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The tragedy of Biden’s judicial appointments


To a degree I never would have anticipated, Joe Biden is actually capable of learning new tricks, and one of them is taking Article III nominations with the seriousness they deserve:

As 2021 draws to a close, President Joe Biden has good reason to be frustrated. His legislative agenda is stymied in the Senate. His executive authority is under assault from Donald Trump’s judges. His administration was blindsided, again, by a spiraling COVID surge, this time with omicron. But there is one front on which Biden has a near-perfect score: judicial nominations. Over the past year, the White House has put forth slate after slate of diverse, well-qualified, progressive nominees—and the Senate has swiftly confirmed them. Biden’s breakneck pace, combined with his choice of nontraditional judges, has shattered too many records to count. No, the president has not loosened Donald Trump’s stranglehold on the Supreme Court. But his transformation of the lower courts will still have a profound impact on American law for decades to come. Advertisement

There are two defining features of Biden’s push to remake the federal judiciary: speed and diversity. Let’s start with speed. In his first year, just 19 of Trump’s judicial nominees had received Senate confirmation. For President Barack Obama, that number was 13; for Presidents George W. Bush and Bill Clinton, it was 28. Biden, by contrast, has seen 40 of his judges confirmed already—the most since President Ronald Reagan. Eleven of Biden’s judges sit on the powerful U.S. Court of Appeals, where most federal cases are resolved. (For comparison, Obama placed just three judges on the Court of Appeals in his first year.)

Now turn to the other extraordinary aspect of Biden’s judicial nominees: their unprecedented demographic and professional diversity. In a comprehensive report, Alliance for Justice has highlighted the many firsts among this crop of judges: the first openly lesbian judge on the Court of Appeals (Beth Robinson); the first Korean American to sit on the Court of Appeals (Lucy Koh); the first Muslim federal judge (Zahid Quraishi); the first Black judge on the U.S. Court of Appeals for the Federal Circuit (Tiffany Cunningham); the first woman of color to serve on the U.S. District Court in Maryland (Lydia Griggsby); the first Native American federal judge in Washington state (Lauren J. King)—the list goes on. According to Alliance for Justice, nearly 75 percent of Biden’s judicial nominees are women, and nearly 65 percent are people of color. For comparison, only 24 percent of Trump’s judicial nominees were women, and just 16 percent were people of color.

Liberal elites have been behind the curve on this for a long time — from LBJ’s botched attempt to replace Earl Warren to Warren and William Brennan helping Nixon and Mitchell force Fortas off the Court to Jimmy Carter acting with bored irritation to the creation of new judgeships to Obama’s early indifference to Pat Leahy’s ridiculous expansion of the blue slip rule, Republicans have gotten the jump too often. It’s good that Biden finally gets that there’s somethin’ wrong here. But thanks in particular to two liberal elites who REALLY can deny — Ruth Bader Ginsburg and Stephen Breyer — it’s too late.

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