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Biden’s Judicial Nominees Highlight Conflict Between Progressives, Civil Rights Groups

Democratic coalition members have competing ideas of diversity

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• March 30, 2021 3:05 pm

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President Joe Biden’s first wave of judicial nominees shows the challenge he will face appeasing both civil rights groups hoping to racially diversify the bench and progressives who want to recruit judges from outside the legal mainstream.

Biden promised to nominate a diverse array of judges on the campaign trail, but competing Democratic factions put emphasis on different kinds of diversity. Civil rights groups expect Biden to put forward a racially diverse slate of appointments after a steady clip of white nominees during the Trump administration, while progressives want nominees with varied professional experience, like legal aid or nonprofit lawyers. 

Biden’s first nominees show these goals are in tension. Several nominees of color put forth by the president Tuesday have the corporate and prosecutorial experience progressives want to purge from the bench. While their confirmations would add diversity to the bench, they are also part and parcel of the legal elite progressives hope to dismantle. How the administration deals with that tension helps reveal whether Biden will push for genuine ideological change or stick with conventional coalition politics. 

Labor unions and leftwing advocacy groups worry that typical candidates for judgeships make the courts too friendly to the government and big corporations. A 2020 study from the Center for American Progress found that about two-thirds of active federal appeals judges came from private practice, while practically none spent their pre-judicial careers as legal aid lawyers or attorneys for nonprofit organizations.

Several of Tuesday’s minority nominees fall into the first category. Tiffany Cunningham, tapped for a seat on an appeals court that deals with patent and trademark issues, has spent her career at elite law firms representing entrepreneurs and multinational corporations in patent and trade secrets cases. Zahid Quraishi, nominated for a trial court judgeship in New Jersey, was a federal prosecutor before entering private practice.

Neither nominee is likely to win praise from progressive groups. But both help Biden fulfill his promise to diversify the courts. Cunningham is black, and Quraishi would be the first Muslim confirmed to the bench. 

Brian Fallon, executive director of the leftwing judicial group Demand Justice, expressed disappointment with several of Biden’s first selections. He faulted senators for failing to put forward prospective nominees with ties to civil rights groups and organized labor.

"Ideally all the nominees in this first wave would come from these kinds of underrepresented professional backgrounds. But old habits die hard for some senators who are used to recommending corporate lawyers and prosecutors for federal judgeships," Fallon said. "We know Biden’s stated preference for civil rights lawyers and labor lawyers for district courts is only as good as the buy-in it generates among home-state senators."

While the White House makes the ultimate decision about judicial nominations, senators wield significant control over judicial selection for federal trial courts in their states.

White House counsel Dana Remus acknowledged Fallon’s concern in a December letter to Senate Democrats. Remus said the administration was focused on finding nominees from groups that have been "historically underrepresented" in the judiciary, like public defenders and legal aid attorneys. Remus herself embodies the difficulties the White House is facing. She clerked on the Supreme Court for Justice Samuel Alito, a conservative, and practiced at a prestigious law firm before becoming a legal aide to the Obamas.  

The preference for prosecutors and white-collar litigators is partially a concession to the confirmation process. Partisan nominees can get bogged down in Senate politics and have a hard time getting confirmed. Prosecutors, government lawyers, and firm attorneys generally have less ideological baggage and can more easily move through the confirmation process.

Progressives argue that picking nominees with ties to leftwing causes is especially important in light of former president Donald Trump’s judicial confirmation record. In remarks delivered after he left the administration, former White House counsel Don McGahn said the Trump White House looked for nominees who had staked clear, bold positions, then defended them against pushback. Liberals say Biden ought to find nominees with the same degree of ideological commitment. 

One nominee who is emerging as a consensus pick is U.S. District Judge Ketanji Brown Jackson, who currently serves on the federal trial court in Washington, D.C. Biden picked Jackson to replace Attorney General Merrick Garland on the U.S. Court of Appeals for the D.C. Circuit, a powerful appeals panel and farm team for the Supreme Court. Though Jackson has experience in private practice, she spent part of her career as a public defender and worked on criminal justice reform as a lawyer for the U.S. Sentencing Commission. 

Jackson is black, and is believed to be high on Biden’s shortlist for the Supreme Court. Elevating Jackson to the D.C. Circuit is consistent with a longterm goal of confirming her to the High Court. Fallon called her a "rising star" in his Tuesday statement. 

Most of Biden’s initial appointments will be to the federal trial courts. There are about 60 vacancies on the trial courts as of this writing, and only seven vacancies on the circuit courts, according to the U.S. Judicial Conference. The circuit courts are multi-state panels that hear appeals from the trial courts. The Trump administration made circuit appointments a priority, since the circuit courts have the final word on the overwhelming majority of federal cases. Several appeals judges have stepped down since Trump left office.