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What Biden’s first list of judicial nominees tells us about his approach to the courts

Biden named a diverse group of 11 lawyers to the federal bench on Tuesday, including several former public defenders.

Judge Ketanji Brown Jackson listens to arguments during a reenactment of a landmark Supreme Court case at the US Court of Appeals in Washington, DC.
Bill O’Leary/The Washington Post/Getty Images

President Joe Biden announced his first slate of judicial nominees on Tuesday with a list of 11 lawyers and judges, including three nominees to powerful federal appeals courts.

During his presidency, Donald Trump reshaped the judiciary, appointing a third of the Supreme Court and about as many federal appellate judges in four years as President Barack Obama appointed in eight. Biden’s first slate of nominees hardly even begins to turn back that tide, but it does offer a window into how he is likely to approach the courts during his presidency. The 11 nominees are racially diverse and predominantly female, and quite a few are lawyers with backgrounds as public defenders.

Notably, all three of his appellate nominees are Black women. As a presidential candidate, Biden promised to appoint an African American woman to the Supreme Court. But Black women aren’t just unrepresented on the nation’s highest court — they’re also massively underrepresented on lower courts.

When Biden took office, only five of the nearly 300 sitting federal appellate judges were Black women, according to the Federal Judicial Center. If Biden’s three nominees are confirmed, he will have nearly doubled the number of Black women judges on the federal courts of appeal, also known as circuit courts.

In addition to these three circuit nominees, Biden named eight nominees to federal district courts, the lowest rank of federal judge with a lifetime appointment. They include Judge Zahid N. Quraishi, a magistrate judge in New Jersey and a former military prosecutor who will likely become the first Muslim American to serve as a federal district court judge.

Nine of Biden’s 11 nominees are women, and a majority are people of color. So Biden is clearly signaling that he intends to name judges who will add racial and gender diversity to the bench. His list would also add a different kind of diversity to a bench populated with former law firm partners and prosecutors, as almost half of the nominees worked as criminal defense lawyers for indigent clients.

Obama emphasized demographic diversity in his judicial selections, but he also came under fire from left-leaning activists for naming many judges who spent their previous career as either partners in corporate law firms or prosecutors.

A 2014 report by the liberal Alliance for Justice found that only 3.6 percent of Obama’s lower-court nominees worked for public interest groups. And while 43 percent of his district court nominees and 38 percent of his circuit court nominees had worked as prosecutors, only 15 percent and 7 percent of those nominees, respectively, worked as public defenders.

Biden’s first list of nominees suggests he was receptive to this criticism. Though the list does include both law partners and two lawyers with prosecutorial experience, it also includes five lawyers and judges who previously worked as public defenders or in some other role where they represented indigent defendants.

If this list is any sign of how Biden plans to pick judges in the future, an ambitious young lawyer with judicial aspirations is better off taking a job representing poor Americans during the most vulnerable moment of their lives than they are taking a job trying to lock up those Americans.

Biden is giving himself more options for a future Supreme Court vacancy

It’s worth taking note of just how underrepresented Black women currently are within the federal judiciary. The first Black woman to serve as a federal circuit judge, Amalya Kearse, was not appointed until 1979. Currently, there are less than a half dozen Black women serving as circuit judges, and the youngest of them on the federal appellate bench, Judge Johnnie B. Rawlinson of the US Court of Appeals for the Ninth Circuit, is 68.

Presidents typically prefer to name Supreme Court justices with a long career ahead of them — people who are, at the oldest, in their early- to mid-fifties. And, in the modern era, justices are normally chosen from the federal appellate bench. Of the nine current justices, only Justice Elena Kagan did not previously serve as a circuit judge.

That means that, if a vacancy were to open up on the Supreme Court today, Biden would need to either choose someone without the traditional credential normally associated with Supreme Court nominees, or name someone much older than usual, in order to fulfill his promise to name a Black woman.

The most notable name on Biden’s list of 11 nominees is Judge Ketanji Brown Jackson, a federal district judge in Washington, DC, and a former law clerk for Justice Stephen Breyer. Biden named Jackson to replace now-US Attorney General Merrick Garland, who gave up his seat on the US Court of Appeals for the District of Columbia Circuit to lead the Justice Department.

Jackson isn’t just a former public defender; she also served as vice chair of the United States Sentencing Commission from 2010 until 2014. during a period when the commission cut sentences significantly for many federal drug offenders.

Jackson, who is 50, was already considered a strong contender for the Supreme Court — after Justice Antonin Scalia’s death in 2016, President Obama interviewed her for the Supreme Court nomination that eventually went to Garland. Her promotion to a court that is widely considered to be the second-most powerful court in the country cements her status as a frontrunner for the Supreme Court (the other is Justice Leondra Kruger, a 44-year-old former law clerk to Justice John Paul Stevens, who currently sits on the California Supreme Court).

Biden also nominated Candace Jackson-Akiwumi, who is currently a law firm partner but also spent ten years as a public defender, to the Seventh Circuit — which oversees federal litigation in Illinois, Indiana, and Wisconsin. Though Jackson-Akiwumi hasn’t yet developed Jackson’s star power or judicial experience, she has many of the credentials traditionally associated with Supreme Court justices, including a Yale law degree and a prestigious clerkship for a federal circuit judge.

And Jackson-Akiwumi is quite young — she graduated from college in 2000. So even if she is not nominated to the next Supreme Court vacancy, she may be talked about as a potential nominee for a decade or more.

Biden’s third nominee to the federal appellate bench, Tiffany Cunningham, is also a fairly young Black woman. But Cunningham, who is currently a patent litigator at a large law firm, was nominated to the Federal Circuit — a highly specialized court that primarily deals with patent law. It’s unlikely a judge with such a narrow focus would be promoted to the Supreme Court.

Biden’s nominees appear less ideological than Trump’s

Though Biden’s preference for public defenders signals that he hopes to appoint judges who represented the vulnerable and not just the powerful, there is one glaring difference between Biden’s nominees and his predecessor’s.

Trump appointed many judges who appear to have spent their pre-judicial career trying to own the libs. For example, Judge Kyle Duncan, a Trump appointee to the Fifth Circuit, worked as general counsel to a leading Christian-right law firm, and he spent much of his legal career trying to restrict LGBTQ rights and diminish the right to vote. Justice Amy Coney Barrett was an outspoken opponent of abortion and LGBTQ rights before Trump named her to the Seventh Circuit and then to the Supreme Court. One Trump judicial nominee, Jeff Mateer, was hastily withdrawn by the Trump White House after news broke that he’d claimed that transgender children are part of “Satan’s plan.”

There’s no equivalent of a Duncan, a Barrett, or a Mateer among Biden’s first slate of nominees. While Biden did name several criminal defense lawyers, the GOP is now more open to criminal justice reform than it was a few decades ago. Trump, for example, signed a reform bill known as the First Step Act into law after that bill passed both houses of Congress by overwhelming margins.

Biden did not name a prominent voting rights attorney to the federal bench. Or a union lawyer. Or a lawyer for Planned Parenthood. Or some other lawyer who is likely to agitate Republicans in the same way that a judge like Barrett concerns Democrats.

That doesn’t mean that such nominations won’t be forthcoming. For the moment, however, Biden appears to be trying to diversify the bench without kicking any political hornets’ nests in the process.

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