Biden Pushes for a Progressive Transformation of the Courts
By ANDREW C. MCCARTHY
January 8, 2022 6:30 AM
President Biden has been co-opted by his party’s progressive ideologues, the same woke Left from which he distanced himself in order to get elected. Nevertheless, the razor-thin Democratic majorities in Congress always made it unrealistic that Biden could deliver on many progressive priorities. I’ve maintained that, to stave off potential mutiny, the administration would load the judiciary and the administrative state with hard leftists.
This is clearly playing out on the federal bench.
With no margin for defections in a 50–50 Senate, Democrats exercise rigorous partisan discipline. Vice President Kamala Harris is the tie-breaker, so for the moment they can approve Biden’s judicial nominees with no Republican support (though they typically pick off a handful of votes from GOP moderates, some of whom continue to regard judicial confirmations as if it were still 1950, with nominees expected to shield the law from their political preferences).
The likes of Senators Joe Manchin (D., W.Va.) and Kyrsten Sinema (D., Ariz.) may occasionally stray from the woke reservation, but when it comes to judicial nominations, even (relatively) centrist Democrats reliably vote to approve progressive ideologues. Doing so works for them, for the same reason that nominating them works for Biden: The woke Left is the locus of the party’s passion, energy, and much of its funding.
Democratic senators need progressive support. They live in constant fear of being primaried. (See, e.g., last weekend’s rumblings that New York’s supposedly moderate Senator Kirsten Gillibrand may be vulnerable to a challenge by congresswoman and progressive darling Alexandria Ocasio-Cortez.) The moderate pose may dupe voters who do not follow politics closely, but nothing says “I’m on the team” to the party’s movers and shakers quite like a Democratic senator’s votes to enrobe the lawyer Left — even though the radical stances of these nominees on such matters as “systemic racism,” nonenforcement of immigration laws, criminal-justice “reform,” defunding police, and voting rights for felons and illegal aliens would be shocking to constituents back home . . . if the media covered them.
The Heritage Foundation’s Judicial Appointment Tracker provides two data points worth noting as this midterm-election year gets under way. First, Biden and Senate Democrats are steamrolling through the confirmation process. Second, the nominees in question are extremists who draw record-low support from the opposition party.
In less than a year, Biden has already filled 40 judicial vacancies, more than twice as many as Trump had by this point in his presidency. This includes eleven nominees Biden has placed on the all-important circuit courts of appeal, the rung just below the Supreme Court, which decides many more cases than The Nine do. Trump, who had more appellate vacancies to fill, had appointed a dozen circuit judges by the end of his first year; Biden and Democrats are moving at a faster clip. The administration has already put 75 nominations in the pipeline. To this point, Biden has not gotten a Supreme Court vacancy to fill, but he is rapidly getting district judges appointed. That, too, is momentous because district judges decide many more issues than appellate judges do.
Tellingly, nearly all of Biden’s appointees — 37 out of the 40 — have drawn more than 25 percent opposition in the Senate. No other president’s nominees have been comparably controversial. About two-thirds of Trump appointees drew such opposition, which was nearly unheard of in prior decades.
Why such opposition to Biden’s judges? Consider a case in point: the nomination of Nancy Gbana Abudu to serve on the Eleventh Circuit, which hears appeals from federal district courts in Alabama, Florida, and Georgia.
Abudu is a progressive ideologue who currently serves as deputy legal director of the left-leaning Southern Poverty Law Center. For 15 years, she was with the ACLU, which has effectively become an adjunct of the Democratic Party. There, as the Daily Wire reports, she specialized in “voting rights.” That’s a euphemism for legal challenges to election-integrity safeguards — e.g., laws that require voters to prove their identities and that prevent ballots from being cast by non-Americans, convicted felons, and other legally disqualified voters.
Abudu’s nomination is thus par for the Democratic course: She echoes party demagoguery holding that any effort to promote the rule of law or secure elections against fraud is tantamount to vote “suppression” and a revival of Jim Crow — or even slavery. This, even though voter participation has trended upward following such efforts: After last year’s passage of Georgia’s much-maligned election-reform law, for example, turnout for municipal elections in Atlanta, a majority African-American city, was up 17 percent over 2017, the above-linked Daily Wire report notes.
Naturally, Abudu also spouts the dogma that restrictions on voting by felons constitute “practically the same system as during slavery,” because blacks (particularly young black males) are convicted at higher rates than other demographic groups. That is, you are to airbrush away the stubborn fact that the disproportionately high rate of convictions is driven by disproportionately high rates of offense behavior — the lion’s share of which preys on African-American communities. Instead, you must adopt disparate-impact theory, the progressive voodoo that presumes America is systemically racist and thus rationalizes that more black men are convicted because the criminal-justice system is rigged against them.
That a nominee subscribes to irrational political theories (sadly, it is no longer accurate to describe them as “fringe”) would not be much of a problem if the expectation were that the judicial task is nonideological — i.e., that the law is objectively knowable, and that the jurist simply applies it to the facts of the case without fear or favor. But that is no longer our norm. It is understood — indeed, for all intents and purposes, it is required by the Democrats’ base supporters — that progressive jurists will use litigation as a vehicle to impose progressive policy. The desired result of a case is determined first, and then judges “reason” their way to it, distorting facts and legal principles as necessary.
Though cosmetically appealing, claims that both ideological camps do this are false. What makes a conservative judge conservative is the conviction that the limited role of courts is to decide cases in accordance with what the relevant laws were understood to mean when enacted. Conservative judging is more about who decides than what is decided. The point is not to prevent progressive policy outcomes or implement conservative ones. It is to ensure that judges are staying in their lane — following the law, not making it. If the society wants progressive prescriptions, it is free to have them (subject to any constitutional restrictions), but it must enact those prescriptions democratically. They may not be imposed by the politically unaccountable judiciary.
Progressives, by contrast, expect judges to impose from the bench progressive prescriptions too unpopular to be enacted by legislation. Since the judge is expected to act politically rather than jurisprudentially, a progressive nominee’s political views cannot be seen as beside the point. They are the point. They are why the likes of Abudu are nominated in the first place.
That is why Biden’s nominees are facing Republican opposition, though not as much as they should be. Indeed, we should be evaluating Senate Republicans with the dolorous new normal in mind. It is no longer credible for a Republican senator to defer to Democrats on a judicial nominee as long as she has impressive academic credentials, pertinent experience, and good character. Biden’s nominees are expected to advance the Left’s policy objectives. To be sure, many of them are very bright and highly accomplished, but their legal acumen is of secondary importance. A Republican who approves such a nominee is thus voting for the Left’s policy objectives just as surely as if those objectives were spelled out in Democrat-proposed legislation.
To the extent moderate Republicans and commentators stress the value of a diverse judiciary, that is progressive claptrap. Pace Justice Sonia Sotomayor, the self-described “wise Latina” elevated to the Supreme Court by President Obama because of her “empathy,” the interpretation of law is a discipline, not a gorgeous mosaic. The right answer to a legal question does not hinge on the race, ethnicity, culture, or life experience of the jurist — no more than the answer to a mathematical problem should vary depending on the background of the mathematician. In the political domain of legislation and elections, diversity and empathy may properly factor into policy choices. They should have no bearing on how court cases are decided. Litigation is the province of the law, not “how I feel about” the law.
For now, Biden is outpacing Trump’s appointment rate. As a practical matter, though, it is not possible for a president to transform the judiciary without being reelected.
A federal judgeship is a lifetime appointment, but judges have the option of taking “senior status” — i.e., of vacating their slots (of which there is a finite number, fixed by statute), though they may remain “senior” judges and handle reduced caseloads (think of it as semi-retirement). Consequently, when the presidency changes parties, pressure is brought to bear on veteran judges to take senior status, particularly those who were appointed by the new president’s party. That way, the new president can fill the vacated slots with the party’s rising young legal talent — lawyers can be expected to continue serving as judges long after the appointing president’s term has expired. In the current president’s case, this entails the nudging of Clinton-appointed and older Obama-appointed judges to make way for Biden’s picks.
Inevitably, this means the first rounds of judicial appointments by a new president, even if numerous, tend merely to involve replacing the incumbent party’s old guard with its younger lawyers. Substituting young Democrats for more mature Democrats solidifies the party’s grip on those judicial slots, but it does not transform the judiciary. To do that, a president must replace appointees of the opposition party with nominees of his own — i.e., Biden would need to supplant predominantly conservative judges appointed by Reagan, the Bushes, and Trump with his own progressive appointees. To have a chance of doing that, a president needs to have more longevity than a single four-year term. It really takes eight years (or more, if the party can continue winning the presidency) to outlast a material percentage of life-tenured judges from the opposition party.
Biden and Senate Democrats are off to a fast start. Republicans should be slowing them down by opposing progressive ideologues — not just without apology, but as a strategy to make a big election issue out of radical Democratic appointees who are out of step with mainstream America. In any event, though, the midterms and the 2024 presidential election will determine what the federal courts become in history’s next phase.
