Biden Yanks Trump-Backed Hispanic Nominee to Federal Appeals Court

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February 5, 2021

President Joe Biden rescinded U.S. District Judge Raúl Arias-Marxuach's nomination for a federal appeals court late Thursday, scrapping a Hispanic nominee initially put forward by former president Donald Trump.

Trump nominated Arias-Marxuach, a federal trial judge in Puerto Rico, for a vacancy that opened on the First U.S. Circuit Court of Appeals on Oct. 26. Senate Republicans were unable to get him to the floor before Trump left office but hoped Biden would renominate him as a courtesy in light of his qualifications.

The ill-fated nomination provoked comparisons to another rising Hispanic judicial star, Miguel Estrada, who was tapped for the Washington, D.C., federal appeals court during the George W. Bush administration. Democrats killed the nomination for fear that Estrada, widely seen as a Supreme Court contender, would become the first Hispanic on the nation's highest judicial tribunal. The episode remains a cri du coeur in Republican judicial circles.

"President Joe Biden just yanked the nomination of a Hispanic federal judge with stellar qualifications," Article III Project president Mike Davis told the Washington Free Beacon. "Democrats claim they want more diversity on the federal bench, yet they have largely voted against women and minority judicial nominees put forward by Republican presidents going back to Clarence Thomas."

"This is yet another example of President Biden's willingness is to carry water for left-wing dark money groups and their agendas," added Judicial Crisis Network president Carrie Severino.

Arias-Marxuach was on the judicial fast track, having been confirmed to the federal trial court in Puerto Rico in May 2019. Just 18 months later, Trump nominated him to the First Circuit, following Judge Juan Torruella's death. Torruella was the first Hispanic judge on the First Circuit, which covers New England and Puerto Rico.

Sen. Lindsey Graham (R., S.C.) declined to forward Arias-Marxuach's nomination to the full Senate when he was chair of the Senate Judiciary Committee. But he held a confirmation hearing for the judge on Dec. 16 in a bid to raise his stock with the incoming administration. Graham told CQ Roll Call that Senate Minority Leader Mitch McConnell (R., Ky.) would advocate for Arias-Marxuach with Biden.

"Having a hearing here will make the case that this would be an outstanding nominee by any president," Graham said.

Judicial nominees left pending under an outgoing administration are sometimes renominated by the new president. University of Richmond law professor Carl Tobias, a judicial selection expert, told the Free Beacon that the Senate confirmed 15 Obama-era judicial nominees under Trump. But he also noted that Senate Republicans confirmed 13 judges in the waning days of Trump's presidency, a fact that clearly irritated Democrats at Arias-Marxuach's hearing.

"You really have to go way back in history to find another example of that," Tobias told the Free Beacon. "In recent history, there hasn't been anything like that number of lame duck confirmees."

Biden has yet to announce a first wave of judicial nominees, and the Senate Judiciary Committee must process a slate of Biden picks for senior posts at the Justice Department in the coming weeks.