No Delay, No ABA Holding Up Biden Push for New Jurists

The Biden administration is acutely aware of the importance of filling any federal judicial vacancy promptly if it ever wants to catch up to the 226 seats filled in the four years of the Trump presidency.

Trump’s sharp focus on getting judgeships filled resulted, among other things, in seating three Supreme Court justices and appointing every circuit court vacancy.

Yes, other presidents have gotten more judges confirmed –Barack Obama, 320; George W. Bush, 362; Bill Clinton, 367 – but each of these had eight years.

The Trump operation had outsourced much of the job of picking new judges, as lawyers know well, to the Federalist Society, Mitch McConnell and two happy-to-cooperate Senate Judiciary Committee chairs, Chuck Grassley of Iowa and Lindsey Graham of South Carolina.

Biden’s staff got the ball rolling before the Jan. 20 inauguration by writing to every Democratic senator asking for a list of qualified and diverse candidates. The letter politely asked the Solons to get off their rears and respond immediately.

The New White House tenants broke with the tradition of recent Democratic presidents by announcing that the American Bar Association would not get dossiers on candidates before they were publicly announced. No gatekeeper role for America’s largest voluntary lawyer organization (the ABA claims just under 400,000 members and there are about 1.35 million attorneys in the U.S.), but their input would be “valued” in due time.

Two reasons were given for this GOP-like switch in cooperation: 1) the ABA evaluation typically takes about 28 days, thus slowing down the judge-making process, and 2) the ABA’s Committee on the Federal Judiciary –which rates candidates “Not Qualified,” “Qualified,” or “Well Qualified” – has traditionally not been friendly to women, minorities and those from non-litigating backgrounds or those who practice criminal defense or civil rights law.

As of this writing, the new president has not announced any new federal judges, although 46 vacancies remained at the end of the Trump term.

Sen. Dick Durbin of Illinois, a smart, tough partisan, took over the chair of the Judiciary Committee in January. He has repeatedly been asked how he will handle the “blue slip” policy, a practice by which both senators of either party from a state of a judicial hopeful, had to return the slips to the head of the committee before a nomination could move forward. In the Trump years, Democratic objections to nominees via the blue slip were ignored.  Now progressives say a Democratic-controlled Judiciary Committee should ignore GOP slips which could be used to block women and minorities from the bench.

How the tables are turned regarding this old Senate tradition depending on who wants to move things along and who wants to erect roadblocks to new jurists!

It will take a large number of appointments for President Biden to catch up with the Trump judicial juggernaut. He may have only two years, if the GOP is able to recapture the Senate in 2022.

Even with the luck of the Irish, though, he probably can’t even make a dent in the lopsided 8th Circuit (of the 11 active judges, only one was appointed by a Democrat), much less the U.S. Supreme Court!

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.