President Joe Biden announced his first roster of candidates for the judiciary on Tuesday with a roster of eleven lawyers and judges, including three candidates for powerful federal appeals courts.
During his presidency, Donald Trump reshaped the judiciary, appointing a third of the Supreme Court and about as many federal appeals judges in four years as President Barack Obama did in eight years. Biden’s first list of nominees is barely beginning to turn that tide, but it does offer some glimpse of how he is likely to turn to the courts during his presidency. The 11 nominees are racially diverse and predominantly female, and some are attorneys with a background in public defense.
Notably, all three of his nominees are black women. As a presidential candidate, Biden promised to nominate an African American woman to the Supreme Court. But black women are not only not represented in the country’s highest court, they are also massively underrepresented in the lower court.
When Biden took office, only five of the nearly 300 seated federal appeals judges were black women, according to the Federal Justice Center. If Biden’s three candidates are confirmed, he will have nearly doubled the number of black female judges in federal appeals courts, also known as circuit courts.
In addition to those three candidates for the circuit, Biden appointed eight candidates to federal district courts, the lowest rank of federal judge with a lifelong appointment. These include Judge Zahid N. Quraishi, a New Jersey judge and former military attorney who is likely to become the first Muslim American to serve as a judge in the federal district court.
Nine of Biden’s eleven nominees are women, and the majority are people of color. So Biden is clearly signaling that he wants to name judges who will add racial and gender diversity to the bank. His list would also give a different variety to a bank staffed with ex-law firm partners and prosecutors, as nearly half of the candidates served as criminal defense lawyers for clients in need.
Obama emphasized demographic diversity in his judicial choices, but was also targeted by left-wing activists for nominating many judges who had spent their previous careers either as partners in law firms or as prosecutors.
A 2014 report by the Liberal Alliance for Justice found that only 3.6 percent of Obama’s lower court candidates worked for public interest groups. And while 43 percent of his district court candidates and 38 percent of his county court candidates worked as prosecutors, only 15 percent and 7 percent of those candidates worked as public defenders, respectively.
Biden’s first list of nominees suggests that he was receptive to this criticism. While the list includes legal partners and two lawyers with experience in law enforcement, it also includes five lawyers and judges who previously served as public defenders or in some other role representing needy defendants.
If this list is a sign of how Biden plans to select judges going forward, it is better for an ambitious young attorney with judicial ambitions to take a job representing poor Americans at the most vulnerable moment of their life than to take a job that tries to recruit them to lock these Americans.
Biden is giving himself more opportunities for a future Supreme Court position
It’s worth noting how under-represented black women are currently in federal justice. The first black woman to serve as a federal judge, Amalya Kearse, was not appointed until 1979. There are currently fewer than half a dozen black women serving as judges, and the youngest of them on the federal appeal bank, Judge Johnnie B. Rawlinson, of the U.S. Court of Appeals for the Ninth Circuit, is 68.
Presidents usually prefer to name Supreme Court justices who have long careers ahead – people who are in their early to mid-fifties at most. And in modern times, judges are usually selected from the Federal Appointment Bank. Of the nine current judges, only judge Elena Kagan has not been a judge so far.
That said, if a Supreme Court position were to become vacant today, Biden would either have to select someone without the traditional credentials normally associated with Supreme Court candidates or appoint someone much older than usual to deliver on his promise Name a black woman.
The most famous name on Biden’s list of 11 candidates is Judge Ketanji Brown Jackson, a federal district judge in Washington, DC, and former Justice Clerk Stephen Breyer. Biden appointed Jackson to succeed today’s US Attorney General Merrick Garland, who gave up his seat on the US Court of Appeals for the District of Columbia Circuit to head the Justice Department.
Jackson isn’t just a retired public defender; She was also Vice Chair of the United States Sentencing Commission from 2010 to 2014. At a time when the Commission significantly cut sentences for many federal drug offenders.
Fifty-year-old Jackson has already been seen as a strong contender for the Supreme Court. After Justice Antonin Scalia passed away in 2016, President Obama interviewed her for the Supreme Court nomination, which eventually went to Garland. Her promotion to what is widely believed to be the second most powerful court in the country cemented her top Supreme Court status (the other is Judge Leondra Kruger, a 44-year-old former Justice Clerk John Paul Stevens, currently serving on the Supreme Court of Justice California sits).
Biden also nominated Candace Jackson-Akiwumi, currently a partner in a law firm but also a ten year defense attorney, for the Seventh Circuit, which handles litigation in Illinois, Indiana and Wisconsin. Although Jackson-Akiwumi has no previous Jackson’s star power or judicial experience, she has many of the credentials traditionally associated with Supreme Court judges, including a law degree from Yale and a prestigious clerkship for a federal judge.
And Jackson-Akiwumi is still quite young – she graduated from college in 2000. Even if she isn’t nominated for the next Supreme Court position, she can be called a potential candidate for a decade or more.
Biden’s third candidate for the federal appeal bank, Tiffany Cunningham, is also a fairly young black woman. But Cunningham, who is currently a patent attorney with a large law firm, has been appointed to the Federal Circuit – a highly specialized court primarily concerned with patent law. A judge with such a narrow focus is unlikely to be promoted to the Supreme Court.
Biden’s nominations seem less ideological than Trump’s
Although Biden’s preference for public defenders signals that he hopes to appoint judges who represent the vulnerable and not just the powerful, there is a stark difference between Biden’s nominees and those of his predecessor.
Trump appointed many judges who appear to have spent their pre-trial careers owning the libraries. For example, Judge Kyle Duncan, a Trump Fifth Circle appointee, served as the general counsel of a leading Christian law firm. He spent much of his legal career restricting the rights of LGBTQ people and restricting the right to vote. Justice Amy Coney Barrett was an outspoken opponent of abortion and LGBTQ rights before Trump called her to the Seventh Circuit and then to the Supreme Court. A Trump candidate, Jeff Mateer, was hastily withdrawn from Trump’s White House after it became known that he had claimed that transgender children were part of “Satan’s plan”.
There is no equivalent of a Duncan, a Barrett, or a Mateer among Biden’s first candidates. While Biden has named multiple 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 after that bill was passed overwhelmingly by both Houses of Congress.
Biden did not name a prominent voting lawyer for the Bundesbank. Or a union lawyer. Or a planned parenting attorney. Or another lawyer who probably upset Republicans as much as a judge like Barrett upset Democrats.
That doesn’t mean that nominations like this are not imminent. At the moment, however, Biden appears to be trying to diversify the bank without stepping into the political hornets’ nests.