Several liberal appellate judges have announced retirement plans in the past few weeks, giving President Joe Biden a foothold on the branch of government most transformed by former President Donald Trump.
The most movement has occurred in the California-based U.S. Court of Appeals for the 9th Circuit, where there are currently 16 Democratic-appointed judges and only 13 appointed by Republicans. The narrow liberal majority was much wider before Trump began his nomination spree, but Biden may have a chance to firm up what was once a solid liberal consensus.
RETIRING JUDGES GIVES BIDEN CHANCE TO OVERHAUL FEDERAL JUDICIARY
Since Biden took office, four judges appointed by former President Bill Clinton have announced that they plan to retire once the Senate confirms their successors. The most recent of these announcements came this week from Judge William Fletcher, who has been on the bench since 1998. The others, Judges Richard Paez, Susan Graber, and Marsha Berzon, are also waiting for the Senate to fill their vacancies before they step down.
Senate Democrats narrowly have the power to push through Biden-nominated judges — and on party-line votes, if need be. Democrats and Republicans each have 50 Senate seats, with Vice President Kamala Harris casting tiebreaking votes.
There are five other Clinton-nominated judges on the 9th Circuit who are eligible to move to senior status, a state of semi-retirement in which judges can continue to hear cases if they so choose. There are also three eligible Republican-nominated judges, Consuelo Callahan, Sandra Ikuta, and Milan Smith, all of whom were nominated by former President George W. Bush.
Smith, one of the court’s more liberal Republican appointees, has been able eligible for senior status since 2016, but he notably retained his seat on the court throughout Trump’s tenure. That may signal that he is considering retirement under Biden, according to Ed Whelan, a prominent conservative legal scholar.
Other appeals court judges have announced their departures as well. On the U.S. Court of Appeals for the 5th Circuit, the Clinton-nominated James Dennis announced last week that he would step down once the Senate confirms his successor. Judge Bernice Donald, an appointee of former President Barack Obama to the 6th U.S. Circuit Court of Appeals, made a similar announcement this week.
Also this week, Judge Beverly Martin of the 11th U.S. Circuit Court of Appeals, another Obama appointee, announced that she was retiring in September. Martin told the Atlanta Journal-Constitution that she made her decision because she was “just ready to do something else.” Martin’s departure gives Biden his first shot at cracking into a circuit in which Trump flipped to a conservative consensus.
Martin added that her decision was in part influenced by the nominees whom Biden has already put forward. She commended him for his emphasis on racial diversity and said that she hopes he will put a member of a minority group in the spot she leaves vacant.
“I’ve read that the president is committed to diversity, so I’m happy to give him that opportunity here,” Martin said.
Biden, who was the Senate Judiciary Committee chairman from 1987 to 1995 during his 36-year run as a senator from Delaware, presided over scores of judicial nomination hearings. Now, the Biden White House is leaning heavily into racial and experiential diversity as it rolls out each new batch of nominees. Of the 20 judges that Biden has nominated since January, not a single one has been a white male. Biden has also repeatedly claimed that his administration is the fastest in the nomination game — a point of contrast with Obama, whose administration left many of the seats open that Trump filled when he took office.
The administration did not respond to a request for comment.
Biden’s flagship judicial nominee, Ketanji Brown Jackson, is widely considered to be a Supreme Court favorite if Justice Stephen Breyer retires. She was approved on Thursday by the Senate Judiciary Committee for a vote before the entire body.
Jackson’s confirmation hearings, which were expected to be contentious, raised only a few eyebrows among Republicans. And in sending her nomination to the Senate floor, two Republicans, Lindsey Graham and John Cornyn, voted with Democrats to approve her for a full Senate vote.
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Jackson, who made her name by ruling against Trump in a Russia investigation-related case, is considered by most Republicans to be a representative of the sort of candidate whom the Biden administration is nominating to fill circuit court seats.
“Unless a circuit nominee can show he or she is affirmatively committed to the Constitution as originally understood, I don’t think he or she should be confirmed,” said Iowa Sen. Chuck Grassley in explanation of his opposition to Jackson.
