One of the criticisms of former President Barack Obama in his first term was a lack of focus on judicial nominations, letting many vacancies go unfilled even while Democrats held the Senate. President-elect Joe Biden learned the consequences of letting nominations languish and is already on it, contacting Democratic senators to get their recommendations for judicial candidates. And not for just any good candidates: for the kinds of judges that have been lacking in the federal judiciary.
“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,” reads a Dec. 22 letter obtained by HuffPost from incoming White House counsel Dana Remus to Democratic senators. Remus continued that Biden doesn't just want those names for a list for potential nominees, he wants recommendations—as soon as possible and with a final deadline of Jan. 19—for any existing district court vacancies. That sets him up to get those nominations rolling literally on Day One, Jan. 20. Additionally, Remus told senators that Biden will expect nomination recommendations from them "within 45 days of any new vacancy being announced, so that we can expeditiously consider your recommendations."
What's got progressive court-watching groups excited is that Biden is focusing on not just demographic diversity in nominees, but professional diversity. That's what progressive groups have been urging him to do. Former Sen. Russ Feingold, who leads the American Constitution Society, told The New York Times a few weeks ago that his group, in a coalition with other organizations, had presented Biden with more than 100 candidates. "We think there should be a broader range of experience on the courts," Feingold said. The list they provided fills the brief: "83 are government or legal aid lawyers, 69 are plaintiff or civil rights lawyers, 52 are academics, 42 are state or magistrate judges and 25 are public defenders. At the same time, 166 of the 306 are women, 134 are Black, Indigenous or people of color and 186 are under the age of 50."
Now, whether Biden can get these people confirmed is another question. Should Sen. Mitch McConnell keep his majority, the answer is almost certainly "no." The only answer to that is to do exactly what Biden is doing—everything he can to help Jon Ossoff and Raphael Warnock win in Georgia, along with moving aggressively and quickly on nominees. That sets up an early fight that could be damaging to McConnell and his Republicans, another big raft of whom are up for reelection in 2022 after McConnell's self-inflicted damage from refusing to allow $2,000 survival checks.
The only option for Biden and Democrats to respond is aggressively, and it sure looks like Biden has that intent. "Our view is the administration should push to make judges a critical part of the conversation," Nan Aron, the president of the Alliance for Justice, told the Times. "The Democrats will need to fight for the judges they want." Looks like Biden is ready for that fight.