After successfully seating federal judges, Biden hits the resistance

WASHINGTON – After early success in appointing and confirming federal judges, President Biden and Senate Democrats have begun to meet firmer Republican resistance to their efforts to reshape the courts.

Republicans in Tennessee have raised objections to Mr. Biden’s selection for an influential appeals court there – the top judicial candidate in a state administration represented by two Republican senators – and a candidate for the court of circuit will likely need every Democratic vote to secure confirmation in an upcoming showdown floor.

The hurdles threaten to slow or stop a little-noticed winning streak for the Biden administration on Capitol Hill, where the White House has stepped up to fill federal bench vacancies, even surpassing the Trump-era rate, when Republicans were focused almost solely on judicial confirmation.

Unlike the administration’s struggle over its legislative agenda, the low-profile judicial push has been one of the highlights of the first year of the Biden presidency. Democrats say they intend to aggressively lobby to counter Trump’s judicial juggernaut of the past four years, and they may have little time to do so, given the possibility of losing control of the Senate in the event. midterm elections next year.

“We take this seriously,” said Senator Richard J. Durbin, Democrat of Illinois and chairman of the Judiciary Committee, which plans to advance candidates through the end of the year and beyond. “We’re going to move whatever we can legally move.”

Mr Biden, a former chairman of the judiciary committee with deep expertise in the confirmation process, sent 64 judicial appointments to the Senate, including 16 appeals court choices and 46 district court appointments. It’s the most at this point in any recent presidential term dating back to Ronald Reagan. Twenty-eight candidates were confirmed – nine appeals court judges and 19 district court judges.

By comparison, Mr. Trump had sent 57 judicial candidates to the Senate, 13 of whom have been confirmed, by mid-November 2017. After four years, Mr. Trump had obtained confirmation from three Supreme Court justices, 54 judges of the courts of appeal and 174 judges of the district courts.

Mr. Biden’s candidates are extraordinarily diverse in both legal education and ethnicity. The White House and liberal interest groups have promoted public defenders and civil rights lawyers in addition to the more traditional choices of prosecutors and corporate lawyers. According to the White House, 47 of the 64 candidates are women and 41 of them identify as people of color, allowing the administration to register many firsts in the justice system.

“The diversity is far greater than anyone could have hoped for,” said Russ Feingold, former senator and head of the American Constitution Society, a progressive group that has actively recommended candidates for the White House. “People are thrilled. “

So far, the vast majority of Biden candidates have been nominated for appeals and district court seats in states represented by two Democratic senators, in close consultation with those lawmakers, paving the way for confirmation. They mainly replace judges appointed by Democratic presidents.

“It picks the fruits at your fingertips,” said Russell Wheeler, visiting scholar in governance studies at the Brookings Institution and a longtime expert in tracking judicial appointments.

According to figures from Mr Wheeler and the White House, 15 of 16 candidates for Mr Biden’s court of appeals were for vacancies in the District of Columbia or in states represented by two Democratic senators. Forty-three of the 46 district court candidates were for seats in states represented by two Democrats or the District of Columbia. Three others were in Ohio, which is represented by a senator from each party, and received support from Republican Senator Rob Portman.

But Mr. Biden will have to venture into more difficult territory if he is to maintain his momentum by producing candidates in states represented by Republicans. Most Republicans are likely to be a tough sell when it comes to their own turf.

After the White House appointed Andre B. Mathis, a lawyer from Memphis, to the United States Court of Appeals for the Sixth Circuit on November 17, the two Republican senators from Tennessee, Marsha Blackburn and Bill Hagerty, went to court. complained that the administration had not “substantially” consulted with them on the selection. A person familiar with the process said the two backed an experienced black judge with Democratic ties for the opening, but the person was ignored for Mr Mathis, who is also black.

“We tried to work in good faith with the White House to identify qualified candidates for this post, but ultimately the White House simply informed us of its choice,” the senators said in a statement.

In naming Mr. Mathis, the White House noted that he would be the first black man from Tennessee to sit on the Sixth Circuit and the first black candidate for court in 24 years. Administration officials said his combination of civil and criminal experiences was a plus.

“We were grateful to discuss potential Sixth Circuit candidates with the offices of the two Tennessee senators several months ago, and we are excited about the historic appointment of Andre Mathis,” said Andrew Bates, spokesperson for the Tennessee. White House.

In the past, senators’ opposition to a judicial candidate from their state would be enough to derail confirmation. Under an obscure practice of the Judicial Committee, the two senators would render either what is called a “blue slip” – a piece of paper signifying that they had been consulted about the appointment, in accordance with the Constitution’s requirement for the president to seek “advice and consent” from the Senate – or withhold it, thus blocking the selection.

But Republicans ended that tradition during Trump’s day and Democrats are unlikely to reestablish it, freeing the White House to go its own way if it chooses, though administration officials say it ‘they intend to confer in good faith with Republican senators.

While Republicans can slow down the process and try to put other hurdles in place, changes to Senate rules mean Democrats can move forward and confirm judges with a simple majority vote. But to do that, Democrats, who control the Senate 50-50 thanks to the decisive power of Vice President Kamala Harris, must stand together and be prepared to devote time to a candidate.

Democrats summoned Ms Harris last month to break the tie in order to allow fellow candidate Jennifer Sung to exonerate the Judiciary Committee after the panel stalled over her US Court of Appeals nomination for the ninth circuit. Republicans criticized Ms Sung for a dazzling letter she signed in 2018 opposing the appointment of Brett M. Kavanaugh to the Supreme Court.

The letter from Yale Law School students, alumni and educators called Judge Kavanaugh an “intellectually and morally bankrupt ideologist determined to roll back our rights and the rights of our clients.” Ms Sung apologized for the letter during her confirmation hearing in September and admitted that she was overheated. Republicans have always unanimously opposed her nomination, making her the first Biden candidate to demand a floor vote.

Republicans have opposed many of the president’s judicial choices, calling them too liberal and insufficiently anchored in the Constitution. But most of the candidates drew at least a handful of Republican support for confirmation – although in the past, judicial candidates often did not need roll-call votes at all.

Republicans grudgingly praised Mr. Biden and Democrats for their efforts, comparing it favorably to the Democratic Senate’s slowness in confirming judges selected by the Obama administration when Mr. Biden was vice president.

“Obviously we’ve made this a priority and I think Democrats are realizing that they missed an opportunity during the Obama administration,” said Sen. John Cornyn of Texas, a senior Republican member of the committee. judicial.

One of the reasons for this change is that Democrats are well aware that they may have a limited window.

Their control of the Senate is in jeopardy next year, and a Republican takeover would significantly hamper Mr. Biden’s ability to install judges in the final two years of his tenure. Sen. Mitch McConnell, Republican of Kentucky and now Minority Leader, showed how it could work from 2015, when Republicans won a majority and slowed down Obama administration candidates, even refusing a hearing for one. choice of the Supreme Court.

“They realize they might not fill any vacancies in January 2023,” Wheeler said.

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