With new public defenders, Joe Biden quietly makes history on the courts

  • In Politics
  • 2021-10-19 00:10:00Z
  • By NBC News

WASHINGTON - While President Joe Biden's economic agenda is mired in Democratic infighting, the Senate is quietly making history on his judicial nominees.

On Monday, the Democratic-controlled Senate voted 52-41 to confirm Gustavo Gelpi to be a judge on the United States Court of Appeals for the First Circuit, making him the fifth new circuit court judge on Biden's watch with a background as a public defender.

Set against recent history, that is a remarkable statistic. President Barack Obama confirmed a total of five former public defenders to the appeals court over his entire eight years, according to the progressive judicial group Demand Justice. Biden has matched that in his first nine months.

Overall, Gelpi is Biden's eighth new judge with experience as a public defender. That's as many as Presidents Donald Trump, Obama, George W. Bush and Bill Clinton landed in their first years combined, said Chris Kang, the chief counsel of Demand Justice.

"It really is amazing how far Biden has shifted the paradigm," Kang said. "This is going to be an important part of his legacy."

With the latest confirmation, Biden is currently outpacing every president since Richard Nixon on confirmation of circuit court judges, who have the last word in most federal cases - though that pace will be difficult to maintain.

One of his new appellate judges is Ketanji Brown Jackson, another former public defender who is widely seen by people close to Biden as a future Supreme Court contender.

Progressives have lamented the longstanding tendency of presidents in both parties to prioritize corporate lawyers and prosecutors for federal judgeships, arguing that the lack of experiential diversity on the courts has created blind spots in the justice system.

Kang, who worked on judicial selection in the Obama White House, recalled having to grapple with criticism the ex-president received for a lack of professional diversity among his nominees.

Biden's White House counsel, Dana Remus, has sought to correct that early by making clear it intended to change course and nominate more public defenders and civil rights lawyers.

Senate Majority Leader Chuck Schumer has put a high priority on judicial nominations and kept the chamber's 50 Democratic members on board to push through Biden's judges, sometimes without any Republican votes. Though he has struggled to advance major parts of Biden's agenda that are subject to the filibuster, judicial nominees are exempt from the 60-vote rule.

Overall, Gelpi is Biden's 17th confirmed Article III judge, with six on appeals courts and 11 on district courts. The next one, Christine O'Hearn, to be a district court judge in New Jersey, is expected to get a final vote Tuesday. Dozens more nominees await a vote.

Some conservatives are raising alarms about Biden's impact on the courts.

Carrie Severino, the president of the right-leaning Judicial Crisis Network, said liberal groups that spent "millions of dollars to help elect Joe Biden have become quite vocal in demanding judicial nominees who will help promote their liberal policy aims from the bench, and he has shown a willingness to do whatever he can to appease those groups."

The push comes after former Senate Majority Leader Mitch McConnell, R-Ky., used aggressive tactics to push through a remarkable 234 judges in Trump's four years. That includes three to the Supreme Court, cementing a 6 to 3 conservative majority that is poised to hear major cases soon about abortion rights and gun laws.

That has lit a fire under the progressive movement.

"Democrats are all taking the courts so much more seriously, and with greater urgency, than ever before," Kang said. "This is a reflection of President Biden and Vice President [Kamala] Harris and [White House chief of staff] Ron Klain's focus on the courts."


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