Biden, Trump, the Senate and lower court selection
Appointments to federal circuit and district courts are a perennial conundrum of American governance. Because the elections are Tuesday, the selection records of President Donald Trump and Joe Biden warrant scrutiny to detect how Biden would fulfill one chief presidential responsibility, appellate and district court nominations and confirmations, particularly as contrasted to how Trump has discharged that responsibility. Throughout Obama’s tenure, Vice President Biden gleaned valuable experience by leading appointments, while his lengthy service as a prominent Judiciary Committee member, seven as chair, show Biden is highly qualified to assume this critical duty.
Trump has constantly promised that he would “make the federal judiciary great again” by confirming ample conservative, young nominees, views which Senate Republicans and their leader Mitch McConnell (Ky.) strongly hold and effectuate. Trump and McConnell incessantly tout their success in confirming the jurists. For example, Trump appointed three prominent, conservative Justices and 53 similar circuit judges, so appeals courts lacked any vacancy in 179 posts.
However, the efforts have imposed expenses on the judiciary and the country. For instance, districts confront 55 openings among 677 positions, 37 comprising “emergencies,” which Trump and GOP senators basically ignore. Trump and the upper chamber deploy practices that undercut the venerable nomination and confirmation processes, rules and conventions, which contemporary presidents and Senates have dutifully applied to confirm numerous excellent, mainstream nominees. The judiciary was great before Trump won the presidency, while his conduct has undermined the courts and citizen support for them.
For instance, Trump negligibly consults politicians from states having vacancies, who are more familiar with superb prospects. He confines ABA participation in selection, only nominally considering effective ABA investigations and ratings, even though presidents since Dwight Eisenhower, apart from George W. Bush, have depended on ABA input. Trump also devotes little effort to nominating and confirming ethnic minority or lesbian, gay, bisexual, transgender or queer (LGBTQ) individuals, although expanded diversity improves the courts.
The Senate majority has contravened valuable customs. For example, it constricted the vaunted policy of “blue slips” — that allowed senators from states with circuit openings to halt myriad nominees in the Obama years — without support for the dramatic change. Judiciary Committee hearings lack rigor, principally because GOP members discourage robust nominee questioning or discussion and review few ABA ratings.
Biden’s appointments endeavors sharply contrast to those of Trump and the chamber majority, who neglected to fill many district and emergency vacancies and confirm minority aspirants — particularly in “blue” states. These factors undercut presidential constitutional responsibilities to nominate and confirm fine jurists, senatorial duties to advise and consent and the judiciary’s critical responsibility to promptly, economically and fairly decide huge caseloads. Those actions erode the Constitution, the rule of law, separation of powers, and citizen respect for the presidency, the Senate, the judiciary, and the selection process.
Trump’s outmoded selection efforts strikingly contrast with the experience of Biden, who served as Obama’s vice president, carefully assuming much selection responsibility. Biden served decades as a Judiciary Committee member and chaired the panel across seven years, powerfully engaging in confirmations for most active federal court judges. Biden’s service as chair illuminates his preeminent capabilities and his consistent emphasis on bipartisanship. Biden smoothly processed and confirmed manifold highly qualified, mainstream nominees suggested by Democratic and Republican presidents, working conscientiously to pass the latest comprehensive judgeships statute during George H.W. Bush’s presidency and to appoint numerous judges late in his tenure.
Thus, Biden was uniquely situated to fully appreciate, respect, and implement many effective strictures, rules and traditions from the viewpoints of the Senate, the committee and the presidency. He understands the compelling necessity to recalibrate and enlarge court ideological balance and diversity. Biden also comprehends the need to restore “regular order” in the appointments process. He systematically employed practices, such as meaningful consultation, helpful ABA input, rigorous panel analyses, hearings, and candidate discussions, and robust chamber debates, which fostered confirmation of able, moderate jurists, who facilitate discharge of the crucial responsibility to quickly, inexpensively and equitably decide cases.
In sum, Trump and the GOP chamber have eviscerated regular order, which undercut swift, economical and fair dispute resolution by permitting district vacancies to reach 140 and emergencies to approach 75. In contrast, Biden possesses five decades of experience as a Judiciary panel member, its strong chair and efficacious vice president in employing regular order by assiduously consulting home state politicians and other Senate colleagues and facilitating confirmation of many able, consensus nominees.
Carl Tobias is the Williams Chair in Law at the University of Richmond.