The Freedom From Religion Foundation and dozens of other national organizations are advising the incoming administration on how to effectively prioritize judicial appointments, in the wake of court packing by the Trump administration.
Senate Republicans have confirmed over 200 extremist judges to lifetime seats on the federal courts at a breakneck pace that will damage our laws and civil liberties for decades to come, warns their joint statement, signed by the American Constitution Society, League of Conservation Voters, National Education Association and People For the American Way, to name just a few other signatories. Republicans have rammed onto the Supreme Court the Religious Right Amy Coney Barrett through an illegitimate and sham process, have entrenched ultraconservative majorities on key courts of appeals, and stacked the trial courts with their Federalist Society-selected appointees.
“At the time of their confirmations, Trump’s nominees already had records posing a severe threat to the rights of women, workers, people of color, LGBTQ communities, immigrants, consumers, and the environment,” states the letter. “Now on the bench, their rulings have more than justified our concerns. Trump-appointed justices have already rolled back hard-won rights and legal protections so critical to everyday Americans, while expanding the power of those at the top.”
That is why the Biden administration must immediately and explicitly prioritize judicial appointments, the statement urges, and advises on how to repair the damage.
First, the statement counsels, the Biden administration must nominate demographically and experientially diverse judges with a demonstrated commitment to equal justice. It should prioritize candidates who are demographically diverse, including from communities of color, women, LGBTQ communities, people with disabilities, and other underrepresented groups; and who come from a range of professional backgrounds, including public interest lawyers, civil rights lawyers, labor lawyers, plaintiffs’ lawyers and public defenders.
Second, the Biden White House needs to prevent procedural roadblocks from delaying expeditious confirmation of outstanding jurists. The administration must be ready not only to nominate but to fight for nominees even in the face of opposition. So, rules put in place by Senate Republicans to fast-track the confirmation of Trump-appointed judges must remain in place for the Biden administration. This means no supermajority vote for Supreme Court nominees; two hours of post-cloture debate for district court nominees; hearings with multiple nominees; and no blue slip veto for appellate nominees, at a minimum.
Third, the incoming executive team must support legislation to create new judgeships. Historically, Congress routinely expanded the number of district and circuit court judgeships to keep up with population and increased caseloads. Since 1990, however, the number of judges has not significantly increased. The Judicial Conference, the policymaking body for the federal court headed by Chief Justice John Roberts, has recommended creating new judgeships to help address the significant increase in cases. At a minimum, these recommendations should be adopted.
Last, but far from the least, the statement recommends, the staff at the White House and Justice Department after Inauguration Day need to be committed to prioritizing judicial selections. The administration must consist of qualified and sufficient staff, committed to expeditiously vetting and marshaling nominees through Senate confirmation. Moreover, staff involved in judicial selection should have experience and deep connections within civil rights and public interest communities and be committed to, and representative of, a judiciary made up of judges from a wide range of legal, demographic and experiential backgrounds.
With the steps outlined in the statement, the Biden administration will, hopefully, be able to undo the judicial wrongs that the Trump administration has committed in the past four years.
The Freedom From Religion Foundation, based in Madison, Wis., a 501(c)(3) nonprofit educational charity, is the nation's largest association of freethinkers (atheists, agnostics), and has been working since 1978 to keep religion and government separate.