WASHINGTON — President Joe Biden and Senate Democrats are vetting civil rights lawyers and public defenders to nominate as judges, embarking on a mission to shape the courts after Republicans overhauled them in the last four years, according to senior party officials and activists.
Democrats have a wafer-thin Senate majority that gives them control over appointments. They believe they have two years to make their mark and fill a growing number of vacancies before the midterm elections, where the party in power historically loses seats.
Some are preparing for a Supreme Court retirement as early as this summer, with most of the speculation centered on 82-year-old Justice Stephen Breyer, a Democratic appointee.
In addition to forming a new commission to study structural changes to the judiciary, the Biden White House has asked senators to recruit civil rights attorneys and defense lawyers for judgeships. Officials who work on the issue say they’ve seen an outpouring of interest and have begun holding sessions to offer information and advice on navigating the confirmation gauntlet.
“We’ll see the proof of this in President Biden’s first set of nominees. I expect they’re going to look very different than the kind of judges that Democratic presidents have put forward in the past,” said Chris Kang, co-founder of the progressive group Demand Justice and former deputy counsel in the Obama White House. “Their backgrounds will be radically different overall, and that will make a huge difference in our courts.”
For decades, Republicans have prioritized the courts in elections to stir up their base. Democrats have all but ignored the issue on the campaign trail and are now playing catch-up after their voters watched in horror as then-President Donald Trump and Republicans filled up more than one-fourth of the U.S. judiciary with predominantly young conservatives.
Senate Democrats are considering the procedural tools to use to assure success — some are calling for eliminating the “blue slip” courtesy that gives senators a veto over judicial nominees who would serve in their states. Republicans ended it for circuit judges, and now Democrats are considering whether to extend that to district nominees.
Many Democrats remain furious about Senate Republican Leader Mitch McConnell's refusal to let them fill a Supreme Court vacancy months ahead of the 2016 election, an extraordinary move that he followed by confirming a conservative justice the week before the 2020 election.
“I call it repair the courts,” Sen. Sheldon Whitehouse, D-R.I., a senior member of the Judiciary Committee, said in an interview. “We have to make sure that we are filling vacancies with credible, neutral, fair-minded judges, rather than the political operatives that we saw so many of in the Trump years.”
“The prospect that we won’t always have a Democratic president and a Democratic majority in the Senate should motivate us to move with real dispatch this time,” Whitehouse said, calling it “a very prudent goal” to fill every judicial vacancy by the end of 2022.
He urged Democratic colleagues to ignore “Republican procedural caterwauling” on matters like blue slips after the tactics they used to tilt the courts to the right.
One Democratic aide who works on nominations said the Senate's priority on judges will be to fill district court vacancies in blue states. The aide said Democrats will "wait and see" if Republicans deal with the fewer red-state vacancies in good faith before deciding whether to push ahead and fill them.
Fill every judicial vacancy?
There are already about four dozen vacancies on federal district courts and a handful on circuit courts. That number will undoubtedly grow when more judges retire and if Attorney General nominee Merrick Garland is confirmed, forcing him to vacate his District of Columbia Circuit seat.
“We have many vacancies we’d like to fill. We want to do it in an orderly, sensible way,” incoming Senate Judiciary Chairman Dick Durbin, D-Ill., told NBC News.
Even though the Senate is split 50-50, under the power-sharing agreement leaders are likely to approve, if all the Democrats stick together, they can approve judges without any Republican support.
With Democrats focused on confirming Biden’s Cabinet and advancing his Covid-19 relief package, some people involved in the judicial process say they expect the first batch of judicial nominations to land in the spring.
White House counsel Dana Remus told senators in a recent letter to recommend candidates for district court vacancies within 45 days of a vacancy, so they can “expeditiously” be considered.
“With respect to U.S. District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life,” Remus wrote in the letter, which was obtained by NBC News.
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That means fewer prosecutors and “big corporate lawyers,” who Whitehouse said tend to have a “high-speed lane” to the judiciary. He said plaintiff’s lawyers will get pushback from groups like the Chamber of Commerce but praised Biden for seeking “professional diversity” along with demographic diversity.
The Remus letter "really did light a fire" under the Senate, the Democratic aide said, adding that regular conversations are occurring between senators and the White House.
Republicans, aided by a well-funded network of conservative groups, expect to fight the Democratic effort to shape the judiciary. Iowa Sen. Chuck Grassley is poised to become ranking member of the Judiciary Committee, serving as the party's first line of defense against Biden's nominees.
But the GOP will have to pick its battles.
“There's always deference to a president,” Grassley said in an interview, promising not to approach the issue “any different than I did in the past.”
The slim Democratic majority means the most aggressive ideas progressives had pushed for — including adding up to four seats to the Supreme Court — are probably going nowhere.
Biden has begun a commission he promised on the campaign trail that will review the structure of the courts and recommend changes. It will be co-chaired by Bob Bauer (who served as a top Biden lawyer during the election) and Cristina Rodriguez (a Yale Law School professor and former Justice Department lawyer), according to an administration source familiar with Biden’s plans.
The commission will include a "wide range of expert views" and feature public testimony, said the administration source, who said recruitment of commissioners has "progressed significantly" but isn't finished. The source added that the focus will include lower courts — not just the Supreme Court.
A White House official said Biden “remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks.”
Senate Majority Leader Chuck Schumer, D-N.Y., hasn’t taken a position on Supreme Court expansion, saying he’ll wait to see what Biden’s commission proposes. But he has said lower courts should get new seats, arguing that some parts of his state, like Buffalo, “don’t have enough” judges.
He told MSNBC’s Rachel Maddow in a Tuesday interview that Democrats “can fill up a lot” of seats.
“There will be lots of vacancies that come up. And I think there are a lot of judges — Democratic appointees who didn't take senior status while Trump was president who now will,” Schumer said. “Then we get to fill it.”