President Joe Biden on Tuesday nominated a prominent voting rights activist to fill a vacancy on the U.S. Court of Appeals for the 2nd Circuit.
Biden tapped Myrna Perez, director of a voting rights program at the New York University School of Law, along with four other candidates to fill a growing number of judicial vacancies that have opened up since he took office. Perez was recommended for the seat by Senate Majority Leader Chuck Schumer, who praised her as someone who will “restore the balance that many believe has been shifted way over to the hard right during the Trump years.”
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Perez, who clerked on several federal courts before beginning her professorial career in 2006, became a familiar face on prime-time cable news during the Trump administration, commenting on the president’s election fraud claims and his pushes to tighten voting laws. She also frequently weighed in on voting discrimination questions, testifying before Congress as a Democratic witness on the issue.
Perez is also one of the leading voices of opposition in a major election law case awaiting a decision at the Supreme Court. That case, which pits the Democratic National Committee against Arizona Republicans, concerns whether two state laws violate Section 2 of the Voting Rights Act, which bans racial discrimination in voting procedures.
The DNC claims both encourage racial discrimination. The first law discounts ballots cast outside of a designated voting precinct. The second prohibits “ballot harvesting,” a practice by which third parties collect absentee ballots when voters are unable to mail them to the state. The two parties have been arguing over the laws since before the 2016 election, but the dispute gained new prominence last year when Arizona, long a Republican stronghold, flipped Democratic.
In Perez’s brief, she wrote that the arguments Arizona Republicans made in favor of the laws are the same that “would permit states to return to similar Jim Crow-era restrictions.” Perez also wrote that the party ought to know that even facially, neutral laws push racial discrimination.
“Petitioners’ proposal is completely divorced from the reality that lawmakers can (and do, especially in the context of contemporary voting procedures) capitalize on longstanding and obvious social or historical disparities,” she wrote, adding that many voting laws exploit existing conditions among minorities to deny those groups “the right to vote.”
In the wake of the 2020 election, Perez has also been critical of other Republican pushes for new election laws. She dismissed one effort in Texas as Republicans “figuring out how to stay in power.”
Perez is an advocate of the “Living Constitution,” a form of textual interpretation that presumes the Constitution is a document whose meaning changes as conditions within the country shift. In March, Perez praised this form of interpretation during a speech at Bowdoin University, noting that William Brennan, the late Supreme Court Justice who lends his name to her institute at NYU, coined the term.
“We spend a lot of time in what I would call the ‘court of public opinion,'” Perez said of her work. “It is really exciting to be able to do this work because it’s founded in Justice Brennan’s ideas.”
She added that her vision of law, and election law specifically, is similar to Brennan’s “Living Constitution,” which she called “not static or frozen in time but one that had to be evolving and dynamic in order to actualize its principles.”
“That is the way the Brennan Center thinks about the world,” she said. “It’s changing and dynamic, and we need to be ready to meet whatever moment is with us.”
Perez’s embrace of the “Living Constitution” sets her apart from many of Biden’s other nominees. Most have been wary of addressing the issue when Republicans, who favor more orthodox methods of constitutional interpretation, have drilled them on it. Judge Ketanji Brown Jackson, who is widely viewed as a potential Supreme Court nominee, for instance, claimed that she had “not had any cases that have required me to develop a view on constitutional interpretation of text.”
That statement, however, was enough to make most Republicans reject Jackson. Her confirmation on Monday was the closest of any judge whom Biden has nominated so far.
Conservatives on Tuesday reacted with censure to Perez’s confirmation. Judicial Crisis Network President Carrie Severino, a key player in many of former President Donald Trump’s nominations, criticized Perez in a tweet thread, saying that she was the most “blatant” example of a “payback scheme” for the Trump era.
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“Biden continues to nominate judges who he knows will deliver via the courts the policy outcomes that the Left desires, irrespective of the law,” Severino said.
Perez did not respond to request for comment.
