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Biden poised to announce first wave of nominations to reshape U.S. courts

One prospect generating buzz is District Court Judge Ketanji Brown Jackson, whose expected appointment to a key appeals court could signal a future Supreme Court nomination.
Judge Ketanji Brown Jackson listens to arguments as local high school students observe a re-enactment of a landmark Supreme Court case at the U.S. Court of Appeals in Washington on Dec. 18, 2019.
Judge Ketanji Brown Jackson listens to arguments as local high school students observe a re-enactment of a landmark Supreme Court case at the U.S. Court of Appeals in Washington on Dec. 18, 2019.Bill O'Leary / The Washington Post via Getty Images file

WASHINGTON — President Joe Biden is poised to elevate a 50-year-old former public defender to a prominent appellate court seat as soon as next week, part of what officials say will be a broader push by Democrats to move quickly on judicial vacancies with an emphasis on diversity.

The expected nomination of District Court Judge Ketanji Brown Jackson to replace Merrick Garland on the D.C. Circuit Court of Appeals could be a precursor to another promotion for her — fulfilling Biden’s campaign promise to choose a Black woman for a seat on the Supreme Court.

Sources close to the deliberations insist that no final decisions have been made, and a White House spokesperson declined to comment on any pending personnel announcements.

But the preparations come ahead of what they say will be a more urgent push than previous Democratic administrations to fill judicial seats, after then-President Donald Trump and Senate Republicans confirmed scores of young, conservative jurists over the past four years.

Biden and his team have put a premium on selecting a diverse field of candidates, seeking out civil rights lawyers and defense attorneys while deprioritizing prosecutors and corporate lawyers. Jackson hits the sweet spot in meeting their goals for both racial and experiential diversity. A judge on the federal district court in Washington, D.C., she was nominated by President Barack Obama in 2013 and sailed through Senate confirmation on a voice vote.

Court-focused progressive advocates expect she’ll be picked, although they say they haven’t been told it directly. And they’re not only preparing to support her candidacy for the appeals court seat, but also a potential Supreme Court vacancy on the horizon.

“All signs point to Ketanji being elevated to an appellate court seat,” said Nan Aron, the president of Alliance for Justice, who described her as “eminently qualified” and said that if Jackson is picked, her organization “will enthusiastically endorse and fight for her confirmation.”

The progressive judicial group Demand Justice says it is preparing materials, research documents and social media videos to defend Jackson in preparation for an announcement.

Demand Justice Executive Director Brian Fallon said Jackson would be an “emblematic choice for Biden’s new approach to prioritizing public interest lawyers for judicial vacancies.”

“If she is picked for the D.C. Circuit, I’d expect her stay there to be rather brief, because I’d expect her to be the lead candidate for a Supreme Court vacancy in the event that Justice Breyer retires,” Fallon said. “And we’d be fully supportive of her in both scenarios.”

Jackson — known inside Biden’s orbit simply as “KBJ” — has been eyed for this appointment for months, ever since he was president-elect and seemed to lean toward Garland for the top spot at the Department of Justice.

Advocates point to Jackson's work as a public defender, her advocacy for change on the U.S. Sentencing Commission and her labor-friendly rulings as a judge. She is a former clerk to Justice Stephen Breyer, who at 82 years old is the oldest sitting member of the high court and seen as a likely candidate for retirement.

Jackson is also related by marriage to a prominent Republican; her husband’s twin brother married the sister of former House Speaker Paul Ryan’s wife.

Senate Majority Leader Chuck Schumer told MSNBC this week that he is working with the White House to “restore balance” to the courts after the “horrible” and “right-wing” judges installed by Trump. He said he'll move to judges after the president's Cabinet is filled.

“That's of great urgency,” he said.

Advisers brief Biden on Supreme Court prospects

Biden’s top advisers, including former White House counsel Bob Bauer and White House counsel Dana Remus — also made a formal presentation to him during the transition about potential candidates for the Supreme Court, according to a source involved in the matter.

They see the preparation as important both given his campaign pledge and also recent history — two justices retired in Obama’s first two years as president; Trump quickly filled the still-vacant seat of Scalia early in his term and then that of Justice Anthony Kennedy a year later.

As the transition team was pressed to have a diverse Cabinet, members of the Congressional Black Caucus — including House Majority Whip James Clyburn, D-S.C., — said it was even more important to diversify the federal bench, especially since they are lifetime appointments.

Biden is a veteran of battles over the judiciary; as Judiciary Committee chairman, he led the charge against Robert Bork in 1987 for the seat ultimately filled by Kennedy.

There are currently seven vacancies on federal appeals courts and 61 on district courts, according to the Administrative Office of the U.S. Courts. And D.C. Circuit Judge David Tatel's plan to assume senior status will create another vacancy for Biden to fill.

Democrats have a paper-thin majority in the 50-50 Senate, leaving no room to lose any votes to advance nominations unless they gain Republican support. There is no filibuster to confirm judges.

The Biden White House has been tight-lipped about its plans for nominations, even with high-ranking Senate Judiciary Committee Democrats.

“I don't have any sense of that. There are a couple of vacancies. I assume they're working through all of that right now,” Sen. Sheldon Whitehouse, D-R.I., said Wednesday. “I'll wait and see who they nominate.”

Republican senators say they’ve been kept out of the loop.

“I haven't had any outreach at all with the White House," Sen. John Cornyn, R-Texas, a senior member of the Judiciary Committee, said in an interview. "They got a 50-50 Senate.They're not going to be able to do it unilaterally.”

“Look, the easiest way to do this is with consultation. Everybody understands that Biden won the election and he gets the opportunity to make the nominations,” he said. “But I think a little bit of consultation will go a long way in an evenly divided Senate.”