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Democrats moving quickly to fill more than 100 judicial openings

Senate Majority Leader Chuck Schumer (D-N.Y.) speaks at

Senate Majority Leader Chuck Schumer (D-N.Y.) speaks at a news conference near the Ohio Clock and the Senate Chamber on Tuesday. Credit: Sipa USA via AP/Michael Brochstein

WASHINGTON — Democrats have gotten off to a running start in filling more than 100 judicial openings with a diverse and liberal set of nominees as they try to balance the courts after Republicans spent four years stocking the judiciary with conservatives, most of whom were white men.

President Joe Biden has announced 24 federal court candidates since the end of March and Senate Majority Leader Chuck Schumer (D-N.Y.) has guided five of them to confirmations, more than for any of the past six presidents before July 4 in their first year.

"They're supercharged. It's a well-oiled machine," said University of Richmond Law Professor Carl Tobias, an expert on federal judicial confirmations.

"The White House is consulting home-state senators, expeditiously nominating people, and then the Judiciary Committee is moving them through committee to hearings, committee votes and floor votes," Tobias told Newsday in an interview.

Democrats said they have a strong sense of urgency after former President Donald Trump and Senate Majority Leader Mitch McConnell (R-Ky.) appointed three justices to the Supreme Court and filled a quarter of the district and circuit vacancies with lifetime appointments.

Trump’s appointees now represent nearly a third of the 179 circuit court judges, who rank just below Supreme Court justices and whose rulings often are the last word. His appointments flipped the majority from Democratic to Republican appointed judges in the 11th Circuit Court in Atlanta, the 3rd Circuit in Philadelphia and even the Second Circuit in Manhattan.

Another spur for Democrats to act quickly is the strong possibility that they may have only two years to confirm judges because history suggests they likely will lose their razor-thin majority of 50 senators with the vice president’s tie breaker in the midterm elections next year.

But Democrats also face hurdles, including the time it takes to advance their own ambitious legislative agenda as well as Republican opposition and McConnell’s tactics to slow down the confirmation process, as Schumer did for Trump’s nominees.

Still, speaking on the day the Senate confirmed the first Biden judicial nominees on June 8, Schumer promised that "we're going to be able to restore a lot of the balance to the courts, because there's a whole lot of vacancies that we are going to fill."

That includes three openings on the Second Circuit, which covers New York, Connecticut and Vermont, and nine in New York’s four district courts — one in the Northern District, four in the Southern District and four in the Eastern District courts, which cover Long Island.

Biden has nominated two Schumer-recommended candidates for the Second Circuit: Public defender Eunice C. Lee, who would be the second Black woman on the circuit, and Myrna Pérez, a Latina and director of the voting rights program at NYU Law School’s Brennan Center.

They reflect the diversity that Biden in December asked Democratic senators to recommend for federal judicial nominations — not only in gender, race and ethnicity but also in their legal and personal background.

Trump's appointees were 84% white and 76% male — and 65% white male — according to the Federal Judicial Center data.

Overall, Biden’s 24 nominees include 19 women, seven of them Black, two Latina, three Asian American, one Native American, one Black and Asian American, and five white. Of the five men, two are Black, two are Latino and one is Asian American, a Pakistani man who would be the first Muslim to be nominated to a federal court. That's about 20% white and 20% male.

Biden’s approach is different from earlier Democratic presidents, who prioritized lawyers from big corporate firms or former prosecutors on the belief they’d be easier to confirm, said Nan Aron, president of the progressive advocacy group Alliance for Justice.

But now, Aron said, "Not only are they nominating demographically diverse judges but they're also prioritizing the appointment of public defenders, civil rights lawyers, lawyers who represent immigrants and Native Americans."

She added, "It's a major departure, not just from Republican administrations, but frankly, from Democratic administrations."

Carrie Severino, president of the conservative Judicial Crisis Network, said Biden’s nominees show the influence that the left wing of the Democratic Party has on Biden.

"I would be happier if I was confident that his judges were ones who would be faithful to the Constitution and the rule of law," she said. "Biden is not hewing to his campaign pitch of being moderate."

Democrats aren’t just focused on diversity, but also on judicial emergencies in districts that don’t have enough judges confirmed to do their work. Tobias said they have made a priority of filling seats in districts with the most vacancies.

Biden nominated four candidates to fill six vacancies in the New Jersey District's 17 seats; three for a Western Washington District that has five of its seven seats vacant, and two for a 10-judge Maryland District’s three vacancies, Tobias said.

But nominations are still pending for California, which has the most vacancies with 17, and New York’s nine.

Last week, Democrats showed a flurry of activity:

The Senate on Monday confirmed District Court Judge Ketanji Brown Jackson to the powerful D.C. Circuit Court — setting her up to be the first Black woman on the Supreme Court.

On Tuesday, in his fourth slate of nominees, Biden nominated Péerez and four other candidates for federal judgeships.

On Wednesday, the Senate Judiciary Committee approved Federal Claims Court Judge Lydia Griggsby, who if confirmed will become the first woman of color to be a federal-district court judge in Maryland.

And on Thursday, the Judiciary Committee approved and sent to the full Senate the nomination of Tiffany Cunningham, an intellectual property attorney and partner at Perkins Coie LLP in Chicago, to be the first Black woman to serve as a judge on the Federal Circuit Court.

"If they keep moving at this pace — and I think it's going to pick up even more as we get into this year and early next year — I'm optimistic about how many vacancies they can fill," said Tobias. "They probably won't get them all, but I bet you they'll get a lot."

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