Joe Biden's first slate of judicial nominees have three things in common. First, they should be confirmable. As the Cato Institute's Ilya Shapiro points out:
Biden's first group of nominees was designed to go down easy; they're all headed for courts in D.C. or states with two Democratic senators, so there's no concern about blue slips or other political blips. That's largely going to continue, since most judicial vacancies are in blue states where senators didn't want to play ball with the Trump White House or then-majority leader Mitch McConnell. Or where judges waited until Biden was elected to announce their retirements.
Second, the nominees come from diverse backgrounds. As explained by Shapiro:
When President Joe Biden announced his first slate of judicial nominees last week, all the media attention was on his identity politics. All three picks for federal circuit courts were black women. If confirmed, we would also have the first Muslim district judge, the first Asian American on the D.C. district court and the first "woman of color" district judge in Maryland. As the White House press release crowed, "the federal bench should reflect the full diversity of the American people."
That's nothing new. Going back to Jimmy Carter's focus on "representativeness," Democratic presidents have touted demographics ahead of most other considerations when it comes to judicial nominations.
Finally, as RNLA previously noted, Biden's picks are a nod to leftist "dark money" interests. (Which is especially hypocritical considering the Left's obsession with "dark money.") As Carrie Severino points out, a number of "dark money" groups gave the Biden picks a "glowing review" following the announcement:
- “This is an incredibly exciting moment for our courts and our country. President Biden is prioritizing the federal bench by rolling out such a large slate of nominees so early in his term, and is demonstrating his commitment to building a diverse bench of qualified, fair-minded judges with a commitment to equal justice under the law.”—Ben Jealous, president of People for the American Way
- “It will be a long road to fix our courts after the last four years, but today’s announcement is a positive first step to rebuilding our judiciary.”—Russ Feingold, president of American Constitution Society
- “For too long, our justice system has served some – but not all of us. President Biden today set a new course to make our courts fairer with judges who will recognize the rights of all of us – not just the wealthy and powerful. We need judges who uphold all of our rights, including those of workers, immigrants, people with disabilities, and LGBTQ people; health care access, reproductive freedom, voting rights, and more.”—Lena Zwarensteyn, fair courts campaign senior director, Leadership Conference on Civil and Human Rights . . .
- Demand Justice put Ketanji Brown Jackson on their short list for the Supreme Court and just ran an ad touting her as “the entire package in one candidate.”
As Shapiro points out, caving to dark money and diversity for diversity's sake can have a price — as Biden's Democrat predecessors learned. However, the President does not seem to care:
The next Democratic president, Bill Clinton, broadened that commitment, and Barack Obama went even further. Both would be criticized, however, for appointing judges who weren't as jurisprudentially strong as the Republican appointees they'd be dueling with, which is of course the downside of a focus on demographics. Indeed, Obama would've gone even further in his judicial affirmative action had the American Bar Association not warned that it would rate many of his candidates "not qualified" if he formally nominated them. That's why Biden ended the ABA's privileged pre-screening role, matching Republican practice going back decades.
This will become increasingly important as Justice Stephen Breyer heads towards retirement. Will Biden nominate a less-qualified but diverse nominee to appease the dark money left? With the ABA losing its role, there will be no check unless moderate Democrat Senators are made to feel the heat or to pay a price.