Senators can be proud of the work they have done these past two years to repair our federal courts. President Biden’s judicial nominees have been confirmed at the second fastest pace we’ve seen in a quarter century. At the circuit court level, Biden has exceeded all but one previous presidents in the number of confirmations during his first two years in office. Beyond the numbers, the White House and Senate Democrats, under the leadership of Senate Majority Leader Schumer and Senate Judiciary Chair Durbin have added unprecedented professional and experiential diversity to the federal courts.
And they have laid the groundwork to do even more in the next two years.
Why It Matters
When we have fair courts, abusive law enforcement officials are held accountable for unjustified violence; our right to vote is protected from attack; laws protecting consumers and working people are enforced; people have better access to legally protected health care, including abortion care; we can better protect our communities from dangerous toxins and more effectively address climate change; and more.
But that only happens when we have fair courts. The Far Right has long recognized the power of courts to help them undermine our Constitution and civil rights laws. That is why they illegitimately prevented President Obama from replacing the late Justice Antonin Scalia. It is why they engaged in a deeply corrupt process to get Brett Kavanaugh confirmed. It is why they jammed through Amy Coney Barrett’s confirmation even as the American people were already voting to reject Trump’s bid for reelection. And it’s why they managed to get a breathtaking 54 Trump circuit court confirmations in just four years, taking over nearly a third of all active circuit judgeships.
In December of 2020, People For the American Way wrote to the Biden-Harris transition team and urged the new administration to prioritize the nomination and confirmation of “fair-minded judges and justices who reflect the diversity of the American people.” We called for them to “nominate judges who understand that the law should protect all of us – not just the white, wealthy and well-connected.” And we called for the Senate to consider those nominees promptly and fairly.
That is exactly what happened: These past two years have shown the striking successes that are possible when the president and Senate make repairing our nation’s courts a top priority.
The Pace of Confirmations
In just two years, the Senate has confirmed 97 lifetime judges. That’s more than the 85 who were confirmed in Donald Trump’s first two years. In fact, this is the second fastest pace of judicial confirmations in more than 25 years, and the third fastest in the past half century. At the circuit court level, Biden’s 28 confirmed judges is second only to Trump’s 30 at this same point.
These numbers are even more amazing coming from a 50-50 Senate operating during a pandemic. For the past two years, the unexpected absence of even one senator could change the outcome of a vote, both at the Judiciary Committee and on the Senate floor. The stronger Senate majority during the next two years should empower Senators Schumer and Durbin to move nominees through at an even more efficient pace.
That can begin on the first day of the new Congress. The Judiciary Committee has held hearings on 39 highly qualified individuals who did not get votes by the full Senate. We expect the president to renominate them quickly in the new year, and the committee to schedule them for committee votes as soon as possible in the new year, without the need for additional hearings.
Phenomenal Nominees
More than the numbers of confirmations, what makes President Biden’s record so amazing are the brilliant and principled people he has named to the bench. More than any other recent president, Biden has selected individuals with a demonstrated commitment to civil rights who can be relied upon to respect everyone’s rights, not just those of the wealthy and powerful.
The Supreme Court: Most spectacularly, millions of people across the nation were inspired by the nomination of Ketanji Brown Jackson to the Supreme Court. At her confirmation hearing, she spoke of bringing her life experiences to the Court, including her experience as a Black woman. She discussed the importance of diversity on the Court, mentioning the letters she’s received from little girls around the country since her nomination. She encouraged young people who are filled with doubt to persevere. And she rose above vicious and disrespectful attacks from privileged people in power, inspiring Sen. Cory Booker’s vow not to let anyone steal his joy over her nomination.
Other Federal Courts: During the past two years, our nation’s lower courts have been enriched with equally inspiring judges. In recent decades, presidents have tended to disproportionately nominate prosecutors and corporate lawyers. In contrast, Biden is nominating people to the bench with underrepresented legal backgrounds, including civil rights and criminal defense.
We now have federal judges who previously spent much of their legal careers with civil rights organizations such as the Brennan Center (Myrna Pérez, Second Circuit), MALDEF (David Herrera Urias, New Mexico), NAACP Legal Defense and Education Fund (Holly Thomas, Ninth Circuit), the Innocence Project (Nina Morrison, New York), the Southern Center for Human Rights (Sarah Geraghty, Georgia); and Vermont Freedom to Marry (Beth Robinson, Second Circuit). The Biden administration has nominated a record number of public defenders, including Lara Montecalvo (First Circuit), Sarah Merriam (Second Circuit), Candace Jackson-Akiwumi (Seventh Circuit), and Arianna Freeman (Third Circuit). People such as these have shown a clear commitment to protecting civil rights, and their experience often gives them a keen understanding of how the justice system does not always live up to its principles.
Unprecedented Diversity
More Black women circuit judges than all previous presidents combined: President Biden has made bold moves to address longtime injustices that date back to the country’s founding, especially when it comes to the historic exclusion of Black women from the bench. When Biden took office, only eight Black women had ever been confirmed to be circuit court judges. Of those eight, only four of them were still in active service at the beginning of 2021.
But in just two years, Biden has had 11 Black women confirmed as circuit court judges. That’s more than all previous presidents combined. In fact, due to recent retirements, there is now only one Black woman active circuit court judge who wasn’t nominated by President Biden.
Other indications of unprecedented diversity: After four years of Donald Trump infamously choosing not to nominate any Black individuals to be a circuit court judge, Biden’s commitment to diversity is refreshing.
At the circuit level:
- 41 percent of Biden’s nominees have been Black, more than Obama (18 percent) and Trump (zero percent).
- 51 percent have been women of color, more than Obama (12 percent) or Trump (three percent).
- 70 percent have been people of color, compared to 35 percent for Obama and 17 percent for Trump.
- 35 percent have been Black women, compared to six percent for Obama and zero percent for Trump.
The disparity between Biden and his predecessors is similar with district courts.
Many of the judges confirmed in the past two years are history-making firsts. To name just a few, they include:
- the first openly LGBTQ+ federal judge in Colorado (Charlotte Sweeney)
- the first South Asian American federal judge in Michigan (Shalina Kumar)
- the first Latinx federal district court judge in Ohio (David Augustin Ruiz)
- the first Black man from Tennessee on the Sixth Circuit (Andre Mathis)
- the first openly LGBTQ+ woman to serve on any federal appeals court (Beth Robinson)
- the first Muslim lifetime federal judge in the nation (Zahid Quraishi)
More work to do: While we praise the White House’s commitment to diversity, we look forward to even more progress in the next two years. For instance, the current Fifth Circuit vacancy provides an excellent opportunity to nominate a Latinx judge to a circuit with a substantial Latinx population. So far, 14 percent of Biden’s circuit court nominees have been Latinx. In addition, we hope to see President Biden nominate Native Americans and people with known disabilities to the circuit courts, as he has already done at the district level.
Looking Forward
The larger Democratic majority beginning next year provides more opportunities for the White House to continue its work to repair the courts.
As noted above, we expect the president to renominate anyone who did not get confirmed this year, most of whom can be advanced through the Judiciary Committee quickly because they have already had a hearing. While tie votes in committee delayed consideration of several nominees during 2021-22, that should not be a problem during the next two years.
We look forward to having numerous highly qualified individuals quickly added to the federal bench in early 2023. For instance:
- Nancy Abudu, an advocate for voting rights and civil rights through her work at the Southern Poverty Law Center and the ACLU, will be the first Black woman on the Eleventh Circuit;
- Julie Rikelman, the longtime litigation director for the Center for Reproductive Rights who also has significant experience in corporate law, will bring her expertise to the First Circuit;
- Rachel Bloomekatz, a longtime public interest advocate in Ohio, will bring her skills and experience to the Sixth Circuit;
- Brad Garcia, whose record includes pro bono representation for criminal defendants, religious minorities, and immigrants, will be the first Latinx judge on the D.C. Circuit;
- Cindy Chung, a U.S. Attorney who has prosecuted civil rights violations, will become the first AAPI judge on the Third Circuit;
- Dale Ho, one of the most accomplished civil rights litigators in the nation, will make an excellent judge in the Southern District of New York;
- Natasha Merle, an advocate for racial justice at the NAACP Legal Defense and Educational Fund, will bring her commitment to civil rights to the Eastern District of New York;
- Nusrat Choudhury, who has advanced racial justice through her work at the ACLU, will become the first Muslim woman federal judge in the nation when she is confirmed to the Eastern District of New York;
- Jessica Clark, a civil rights attorney for both New York and the federal government, will become a judge in the Southern District of New York;
- Tiffany Cartwright, a civil rights litigator whose cases include police misconduct, will bring her knowledge and experience to the Western District of Washington;
- Hernán Vera, an attorney with extensive experience in pro bono public interest who once worked at the Mexican American Legal Defense and Educational Fund (MALDEF), will become a judge in the Central District of California;
- Kenly Kato, a state judge who previously spent several years as a public defender, will now become a federal judge in the Central District of California;
- Araceli Martinez-Olguin, a longtime advocate for immigrants’ rights, will become the second Latina judge confirmed to the Northern District of California;
- Todd Edelman, who has experience as a public defender and at the Georgetown University Law Center’s Criminal Justice Clinic, will bring his expertise to the Washington, DC district court.
Below is a complete list of nominees yet to be confirmed.
Nominees who already had their committee hearing:
Circuit:
- Nancy Abudu (11th Circuit)
- DeAndrea Benjamin (4th)
- Rachel Bloomekatz (6th Circuit)
- Cindy Chung (3rd)
- Bradley Garcia (D.C. Circuit)
- Anthony Johnstone (9th Cir)
- Maria Araujo Kahn (2nd)
- Julie Rikelman (1st)
District:
- Robert Stewart Ballou (VA – Western District)
- Daniel Calabretta (CA – Eastern District)
- Tiffany M. Cartwright (WA – Western District)
- Nusrat Jahan Choudhury (NY – Eastern District)
- Jessica G. L. Clarke (NY – Southern District)
- Todd Edelman (DC)
- Kymberly Evanson (WA – Western District)
- Gordon Gallagher (CO)
- Matthew L. Garcia (NM)
- Jonathan J.C. Grey (MI – Eastern District)
- Margaret Guzman (MA)
- Dale Ho (NY – Southern District)
- Lindsay Jenkins (IL – Northern District)
- Myong Joun (MA)
- Kenly Kiya Kato (CA – Central District)
- Julia Kobick (MA)
- Colleen Lawless (IL – Central District)
- Rita Lin (CA – Northern District)
- Araceli Martinez-Olguin (CA – Northern District)
- Gina R. Méndez-Miró (PR)
- Natasha C. Merle (NY – Eastern District)
- Adrienne Nelson (OR)
- Casey Pitts (CA – Northern District)
- Ana C. Reyes (DC)
- Ramon Reyes (NY – Eastern District)
- Andrew Schopler (CA – Southern District)
- James Edward Simmons (CA – Southern District)
- Arun Subramanian (NY – Southern District)
- Hernán D. Vera (CA – Central District)
- Jamar Walker (VA – Eastern District)
- Jamal Whitehead (WA – Western District)
Nominees who have not yet had a hearing:
Circuit:
- Jabari Wamble (10th)
District:
- Charnelle Marie Bjelkengren (WA – Eastern District)
- Orelia Merchant (NY – Eastern District)
- Scott Colom (MS – Northern District)
- William S. Pocan (WI – Eastern District)
In addition to quick action on all the returning nominees, we look forward to the White House continuing its robust pace of new nominations throughout 2023. And as this occurs, we expect Chair Durbin to continue holding regular and frequent hearings, just as he has done for the past two years.
It is important that the work of repairing the courts not slow down. After all, the far-right judges already on the courts will continue to issue harmful rulings for many years to come, sometimes decades. But the more fair judges there are, the more likely it is that people turning to our courts for justice will find it.
Next December, at the end of Biden’s third year, how will he compare to previous presidents at the same point in their administrations? Donald Trump had a record 50 confirmed circuit court judges at the end of 2019. Jimmy Carter had 197 lifetime judges overall confirmed by the end of his third year. (This does not include the U.S. Court of International Trade (CIT) or its predecessor, the U.S. Customs Court.)
This is important work. Our future depends on it.