As of late December, the U.S. Senate has confirmed 40 federal judges nominated by President Joe Biden — 11 to the courts of appeals and 29 new district judges. There are 31 more nominees pending confirmation. They bring diversity to the bench, including firsts for some courts with Black women, Asian Americans and Native Americans. The White House says 78 percent of the new judges are women and 53 percent are people of color. More of them come from backgrounds as defense lawyers and civil rights lawyers than any previous administration’s judges.
The judicial confirmations form the mostly untold, unsung success story of the Biden administration. While Republicans have succeeded in rallying their voters around this issue, Democrats never seem to appreciate the value of securing the White House and controlling the appointment of federal judges. That’s among the reasons the Supreme Court now stands at a 6-3 conservative majority and many of the courts of appeals have turned sharply more conservative. That’s not to say that all judges hew to the politics of the party that appoints them, but one of the benchmarks of success for any administration is maintaining balance in our federal courts.
Republicans have been far more successful than Democrats at prioritizing the courts in the minds of voters over past administrations. Appointing judges has been an articulated priority for Republican insiders. Then-President Donald Trump’s chief of staff Don McGahn remained in place as controversy swirled around the White House, fighting to ensure the confirmation of Supreme Court nominee Brett Kavanaugh. Sen. Chuck Grassley, in response to news of McGahn’s departure, issued a statement praising his success in confirming judges.
As Ron Klain, Biden’s chief of staff, pointed out in a tweet following the confirmation of the 38th judge appointed by Biden, “I remember when the GOP used to say that Trump's judicial picks were alone enough to prove his leadership. He won confirmation of 19 judges in 2017. Tonight, the Senate confirmed the 38th judge nominated by POTUS in 2021.” So why don’t more Democrats see it that way and celebrate Biden’s accomplishments?
It’s time for that to change if Democrats are committed to painting an accurate picture of the Biden administration's accomplishments, as well as its future challenges. Trump, with a heavy assist from then-Senate Majority Leader Mitch McConnell, was able to appoint his first Supreme Court justice, Neil Gorsuch, in April 2017 after McConnell held Justice Antonin Scalia’s seat open from February 2016 on, claiming confirmations should not take place in an election year. Trump’s second appointment followed the announcement by Justice Anthony Kennedy, very late in the 2018 term, that he would be retiring.
And, of course, he got his third opportunity to appoint a justice after McConnell did an abrupt about-face, confirming Amy Coney Barrett after voters were already casting ballots in the 2020 election. The resulting newly conservative 6-3 majority on the court has led to serious concerns that this term will see the end of abortion rights in America, following argument in cases from Texas and Mississippi. Court watchers fear further erosion of voting rights in coming terms, following last year’s Brnovich case, which limited the ability of litigants to prevail in lawsuits challenging restrictions on voting.
Leslie Proll, a senior adviser on judicial nominations to the NAACP who has worked on nominations for decades with civil rights groups, told me, “Democrats’ new focus on the courts was fueled by four years of Trump appointees, who were hostile to everything they stood for. Reforming the courts at the first opportunity became a moral imperative.” Biden’s focus on appointments didn’t happen in a vacuum. The administration, she said, “didn’t wake up one day and say, 'Let’s finally do the right thing here.'” It had become apparent to Democrats that they needed to make the courts a priority.
Our most critical rights are litigated bottom to top in federal courts. And as we learned when some of the worst excesses of the Trump administration were curtailed by the courts and more recently, as the courts have taken at least the beginning steps to force turnover of material information about the insurrection, the courts really do matter. Democrats who cast protest votes in 2016 when their candidate didn’t become the nominee have concrete evidence of the impact of splintering off votes from their party’s candidate. So, Biden’s efforts to replenish the federal bench are not just good news, they also are a singular achievement for this administration. Yet, Democrats seem to have an inability to message around this success.
Instead of leading with the work they’ve accomplished despite their slim majorities and in the face of outright obstruction from Senate Republicans, the predominant narrative in our political sphere has centered on Democrats’ inability to pass key pieces of legislation amid factional infighting. Recent approval ratings show Biden underwater.
Perception has a way of becoming reality. If Democrats fail to tout their successes, loudly and at every opportunity, they will lose the narrative. It shouldn’t be difficult to explain the extraordinarily rapid pace of this administration’s judicial confirmations, as well as their quality and impact, to the public as a success story. And success tends to build on success.
Here’s one place where Biden’s success with judges looms large. In a mid-December commencement speech at South Carolina State University, a historically black institution, Biden cut straight to the chase: “Without the right to vote, there is no democracy,” he said.
Truer words. The right to vote is as vulnerable now as it has ever been. But ultimately, even if the Senate acts to protect it, like so many other rights, it will be dependent on the long term willingness of the courts to provide protection. Having spent much of my career working to ensure and litigating issues involving voting rights as both a government lawyer and in private practice, I’ve never been more concerned. There is everything from extreme gerrymandering to new laws passed by red state legislatures that will make it possible for future candidates to legally overturn election results, much like Trump unsuccessfully sought to do in 2020. The prospect of having a new generation of judges on the bench, with three more years of appointments to come, who are partisans for the Constitution, not for a political party, should matter deeply if you care about the right to vote.
In the middle of these types of very serious concerns about protecting rights and the fragility of our institutions, Democrats are missing the moment to celebrate an extraordinary success of this new and still young administration — one that will impact these issues not just now but for decades to come.
It’s time for Democrats to break through the narrative that they haven’t accomplished anything and make sure the public understands the importance of this administration’s judicial confirmations. Yes, in the words of Vice President Kamala Harris to Charlamagne the God, “there is a whole lot more work to do.” But Democrats need to do more to celebrate, if not flaunt, their success with judicial appointments and then move on with that momentum at their backs, to the next challenge.