Before President Joe Biden had even been inaugurated, his transition team contacted Democratic senators to get them cracking on making judicial nominations. Not just any nominations, either. “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,” a memo to the senators read.
The first year of Biden’s term was a huge success on the judiciary front. As the months progress, however, the ground-breaking has slowed and that commitment to a more diverse bench—especially at the district level—is in jeopardy. Witness two of the most recent district court nominees from Biden in Louisiana. Both Jerry Edwards Jr. and Brandon Scott Long are prosecutors as opposed to public defenders or civil rights attorneys. Both were apparently named because they were nominees the White House could get the state’s Republican senators to approve.
That’s a big problem for the Congressional Black Caucus and for the state’s lone Democrat in the delegation, Rep. Troy Carter, who is a member of that caucus. The CBC wrote to Biden asking that he withdraw the nominees because “the process used to select the nominees ... did not provide the opportunity for our meaningful participation.”
It’s normal practice, and certainly a courtesy, for the White House to consult with a House member of the same party when considering nominations in states represented by senators from the opposite party. In this case, the CBC writes Carter was notified several weeks ago that nominations were “imminent” and that he was receiving the notification as a courtesy. In the future, he was assured, “he would be consulted in a meaningful way” on nominations. Then he got word of these two new nominees, who “were again presented to Congressman Carter as a fait accompli.”
The CBC has been actively engaged in trying to make the nomination process more equitable and ensure Biden’s goal of a more diverse judicial bench is realized. They met with Judiciary Committee Chairman Dick Durbin in early May to try to convince him to get rid of the procedure that results in nominees like these two in Louisiana, known as blue slips.
That’s the courtesy extended by the majority to the minority when it comes to judges: Senators have the right to veto candidates before they’re even nominated by withholding their approval, or the blue slip of paper they turn in to the committee to endorse a nominee. Republicans have been abusing the tradition for years, but Democrats keep observing it anyway even though it is a courtesy, and not a rule. In this Congress, Democrats haven’t required the sign-off on appeals court nominees, but have kept it in place for district courts.
Rep. Steven Horsford of Nevada, who chairs the Black Caucus, called it a “Jim Crow practice,” saying the issue “is literally about the fundamental survival of the people we represent.” That’s the message the Caucus is sending the White House. These positions are important, they write, as “they are often the last resort to protect the rights of citizens from overreaching state governments,” and that is “particularly true in the Deep South where federal judges have often stood against an entire state's apparatus to push back Jim Crow Laws, desegregate Schools and voter protection.”
The legislators who represent these communities need to be consulted, the caucus tells Biden, because they can speak to nominees’ “work in the community, their ideology, the type of law they have chosen to practice,” and other factors. “So far, in Louisiana, and other States, it appears having two blue slips returned trumps all of these considerations.”
“Negotiating with senators to fill judicial vacancies without meaningfully including elected members of the House of Representatives must stop,” the Black Caucus members wrote in their letter, requesting a meeting with White House chief of staff Jeff Zeints.
RELATED STORIES:
Congressional Black Caucus to Dick Durbin: Do something
Biden and Schumer are building a phenomenal judicial appointment record, but can't stop now
Biden moves to start saving the judiciary from Trump and McConnell on Day One
