Some people obsessively check just about every day of the week to see what the stock market’s doing. Some (it seems) check their Facebook feed every damn hour of the day. I suppose those folks might consider me a weirdo with no life, since I check the list of President Joe Biden’s federal judge nominees who have been confirmed by the Senate—with about the same regularity.
Most Americans pay attention to Supreme Court nominations because they’re a big deal, with their confirmation hearings usually a televised event. But judicial engineering by the right has been going on for years, without a great deal of our citizenry even realizing it. To the point where we now have an entire rogue federal circuit court of appeals, made up of largely unknown right-wing judges, essentially altering the law at their own whims to mesh with hard-right conservative ideology, all in anticipation that their compatriots on the Supreme Court will approve. As the last gateway to the Supreme Court, these federal circuit courts have an enormous influence on the cases that actually make their way to the Supreme Court’s docket.
Because it’s practically impossible to dislodge these folks from their cushy sinecures once they’ve received their lifetime appointments, the only real way to replace ideologically corrupted federal judges is to wait until they retire (or take “senior status”), then appoint fair and decent judges in their stead. This week, President Biden—through the Democratic-controlled Senate—managed to confirm five circuit court judges. While five confirmations in a week may not be a record, it is certainly worth celebrating.
The Trump administration revealed a lot of surprising things to many Americans that they probably hadn’t thought too much about before. One of the most jarring had to be the revelation that the “law” was not something generally fixed and predictable, applied more or less in the same way, time and time again; in the hands of certain judges it could become anything they happened to say it was. Americans soon learned that in the hands of a federal judiciary, polluted by Donald Trump and the Republican Party through the appointment of fierce ideologues and (in many cases) wholly unqualified political hacks, the law could be molded by a single judge (or a group of them) to fit whatever result was desired.
We’re seeing this play out in Florida’s Southern District right now, with a grossly inexperienced and possibly politically corrupt judge named Aileen Cannon, whose sole claim to fame before her elevation to the federal judiciary seems to be her membership in the right-wing judicial breeding pool known as the Federalist Society. Funded in large part by "dark money" donations from the fossil fuel industry and other corporations whose main concern is avoiding taxes and regulations that interfere with their profits, membership in that organization seems to be the only requisite for a federal judgeship, if you happen to be a Republican.
In contrast, one of the most striking features of the Biden administration thus far has been the outsized number of judges the president has nominated who aren’t both white and male (or FedSoc members). The fact that he’s managed to get these judges confirmed at a seriously fast clip—with the thinnest of Senate majorities imaginable—makes this feat all the more remarkable.
As pointed out in August by John Gramlich, writing for Pew Research Center:
Biden has appointed more judges to the federal courts at this stage in his tenure than any president since John F. Kennedy, and his appointees include a record number of women and racial and ethnic minorities, according to a Pew Research Center analysis of data from the Federal Judicial Center.
The five nominees confirmed in the last seven business days are no exception. On Sept. 7, the Senate confirmed Asian American Judge John Z. Lee, to the Seventh Circuit Court of Appeals. A Harvard law graduate, Judge Lee had previously served for 10 years as a district judge for the Northern District of Illinois, and as a trial attorney for Environmental and Natural Resources Division at the U.S. Dept. of Justice. As noted by the Minority Corporate Counsel Association, Lee joins 29 active Asian American and Pacific Islander Article III judges in the country (out of about 850 judicial positions).
The very next day, the Senate confirmed Andres Mathis to the Sixth Circuit Court of Appeals. Judge Mathis is a former criminal defense lawyer, previously serving on the Magistrate Judge Selection Panel for the U.S. District Court for the Western District of Tennessee, and on the Disciplinary Hearing Committee for the Tennessee Board of Professional Responsibility. He will be the first Black man from Tennessee to sit on the Sixth Circuit Court of Appeals (the last time a Black man was confirmed to the Sixth Circuit was 24 years ago).
On Sept. 12, the Senate confirmed Judge Salvador Mendoza, Jr. to the Ninth Circuit Court of Appeals. Mendoza was born in California to parents who immigrated from Mexico. He previously served for eight years on the U.S. District Court for the Eastern District of Washington, being the first Latino judge ever to serve on that court. Prior to that time, he’d developed a distinguished resume helping low-income families and juveniles with drug problems.
On Sept. 14, Lara Montecalvo was confirmed to the First Circuit Court of Appeals. She had worked for 16 years for the Rhode Island Public Defender’s office; afterwards she was named the Public Defender of Rhode Island.
And finally, on Sept. 15, the Senate confirmed Sarah A. L. Merriam to the Second Circuit. She had previously served as a U.S. Magistrate judge for the District of Connecticut. Like Montecalvo, she had also worked as a public defender, representing indigent defendants and witnesses prior to her judicial career.
These are all stellar appointments, in keeping with President Biden’s desire to diversify the federal judiciary. But they’re also notable because their prior careers all involve real-world service to the public, particularly those segments of the public who often receive short shrift by our legal and criminal justice system. All of their confirmations were also opposed by at least 40 Republican senators.
This brings to 82 the total number of President Biden’s Article III judges confirmed by this bare-majority Democratic-controlled Senate, without which none of them likely would have received a hearing, let alone be confirmed. As noted by Jennifer Bendery, writing in 2019 for HuffPost, Circuit Court nominees—such as those described above—are particularly crucial: “For the appeals court judges in particular, the decisions these people make will affect you and millions of other people for generations.”
Bendery interviewed University of Richmond law professor Carl Tobias:
“It is important for the public to appreciate that appeals court appointees serve on courts that are the courts of last resort for 99.9% of cases in their regions of the U.S. on issues like capital punishment, abortion, same-sex marriage, immigration, etc.,” said Carl Tobias, a University of Richmond law professor and an expert on federal judicial nominations. “The key is they resolve 50,000 cases per year and the Supreme Court resolves 100.”
More than anything else, the appointment and confirmation of judges like these—all confirmed in rapid succession within one week—is why it’s imperative that Democrats retain their majority in the U.S. Senate.
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