President Biden last week named 11 people he plans to nominate to serve on federal courts, more than any recent president this early in his term. Nine are women, three are Black women and one would become the country’s first Muslim federal judge.
I spoke to Carl Hulse, The Times’s chief Washington correspondent and the author of a book about Trump-era fights over the judiciary, about why Biden is rushing to shape the courts and how judges became so central to American politics. Our conversation has been condensed.
Ian: Donald Trump’s judicial appointments were a big part of his presidency, and now Biden seems to be making filling vacancies a priority. Why have the courts become so important?
Carl: Because the courts are deciding our political fights now. Climate change, voting rights, immigration, redistricting: Because the legislative branch is so stuck, the courts are getting to be the arbiters. They’ve been amplified as a political issue because of their increased importance in deciding big, cutting-edge issues.
Why is Biden in such a hurry?
Democrats are operating under the assumption that they have only two years. They could easily lose the Senate next year, and then they’d have to get judicial nominees that Republicans would be willing to vote for. So I think we’re going to see a big push from Biden.
So far, what distinguishes Biden’s nominees from his predecessors’?
Federal judicial nominees have typically been somebody from the U.S. attorney’s office, a local prosecutor or a partner in a law firm. But after Trump put 220-some judges on there — many of them very conservative, most of them white males and some of them with very little legal experience — the Biden folks concluded they needed to get different kinds of people on the courts.
The U.S. Court of Appeals for the Seventh Circuit, in Chicago, has a totally white lineup of judges. So Biden picked Candace Jackson-Akiwumi, who is a Black woman and a former federal public defender. Public defenders see the federal courts from another side — from the perspective of the defendant. That’s a big change. I think Biden wanted to make a statement about the kinds of judges he wants: people with different life and legal experiences.
There are currently 68 vacancies, with another 26 scheduled to open this year. Does that limit how transformative Biden can be?
The transformation is going to be in the types of judges. Biden is going to have a hard time matching Trump’s numbers, which were over four years. And that was a concerted campaign by Mitch McConnell, to the exclusion of many other things.
The big problem is time. You have the background checks and hearings, and Republicans are going to resist some of these folks. Because of the changes in the filibuster rules, if every Democrat supports a nominee, they can get through. But it can be a long, drawn-out process.
Is the emphasis on judges something Democrats learned from Trump?
Presidents and Senate majorities have always wanted to install judges who reflect their ideologies to some extent. But it’s definitely a bigger point of emphasis because of Trump. Democrats watched what Senator McConnell did so successfully, and they are eager to replicate that from the other end of the ideological spectrum. Trump’s going to have people on the bench for 30 years, maybe 40. There’s still a few Reagan judges out there.
Trump appointed three justices to the Supreme Court. Many Democrats hope that Stephen Breyer, who is 82 and one of the court’s three remaining liberals, will retire soon. Does that seem like Biden’s best hope to fill a seat?
We’ll see what happens. A lot of Democrats don’t want to get caught in this Ruth Bader Ginsburg situation again. And Justice Breyer is an extremely smart guy, and also a political guy. He knows what’s going on here.
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