Democratic victories in Georgia this week cleared the path for the Senate to confirm most of President-elect Joe Biden’s judicial nominations.
With only the slimmest of majorities, ensured by incoming Vice President Kamala Harris’s tiebreaker vote, Senate Democrats for the first time since President Barack Obama’s tenure will have control over judicial confirmations. The power shift ends Senate Majority Leader Mitch McConnell’s iron grip on the proceedings and allows Biden to reshape the branch according to his party’s desires.
In large part, those desires consist of a push for more racial diversity. Biden on the campaign trail said that, if elected, he would nominate the first black woman to the Supreme Court, a promise to which judicial activists have been eager to keep him to. Liberal court reform activists delivered Biden a list of potential nominees only hours after the election concluded, according to Russ Feingold, president of the American Constitution Society, a liberal group founded to counter the conservative Federalist Society.
On the congressional side, Democratic senators said they are eager to work with Biden, especially after the McConnell and Trump team pushed through a record number of appellate court judges, as well as three Supreme Court justices, without their consent.
“I look forward to a judicial selection and confirmation process that considers the skills, qualifications, and diversity of nominees, not whether they’ve proven reliable to right-wing donor interests,” Rhode Island Sen. Sheldon Whitehouse told the Washington Examiner.
Whitehouse, particularly in the case of Justice Amy Coney Barrett, spoke out sharply against the process by which Trump and McConnell handled judicial vacancies. Long a critic of “dark money” in politics, Whitehouse claimed that the fact that a sizable quantity of Trump’s picks belonged to the Federalist Society indicated corrupt influence on the conservative legal group’s part.
The group played an outsized role in Trump’s judicial strategy, providing him with names that the president considered for lists that he released to assure supporters of his conservative legal bonafides. Biden, on the other hand, has not pursued such a strategy, keeping his possible picks under wraps.
A major reason why Biden has been largely quiet about his judicial picks is a reluctance to stir division within the Democratic Party’s tenuous Senate majority, said Michael Gerhardt, a law professor at the University of North Carolina. Biden will most likely pick centrist judges, he told the Washington Examiner, in an effort to appeal to both sides of the aisle.
“The narrow majority might lead Biden to pick people whom the Democratic majority can all support, though he might look for as much broad consensus as he can get,” Gerhardt said. “The broader the consensus he seeks, the more he will shy away from overtly left-leaning candidates.”
Obama pursued a similar strategy when Republicans took control of the Senate after the 2014 midterm elections. When Justice Antonin Scalia died in 2016, Obama appointed the centrist judge Merrick Garland off the U.S. Court of Appeals for the District of Columbia Circuit. The Garland pick backfired, however, when McConnell refused to bring it to a vote, instead opting to hold the vacant seat for the next president, who turned out to be Trump.
Now, by picking Garland to be his attorney general, Biden has the opportunity to fill his seat on the D.C. Circuit, which is considered the second most powerful court in the country. The incoming president has not gestured at how he plans to handle what will likely be the first significant court vacancy of his term. And the Biden transition team did not respond to request for comment.
But no matter who Biden might pick for the Garland seat or any other judicial vacancies, he’ll likely make his choice with an eye to balancing the “Trumpward tilt” of the federal judiciary in the past four years, said Laurence Tribe, a law professor at Harvard University who co-founded the American Constitutional Society.
