Biden pushes to fill federal judicial vacancies before Trump takes over

In the final weeks of this Congress, Democrats are making a push to confirm a number of President Joe Biden’s judicial nominees. White House Correspondent Laura Barrón-López reports.
William Brangham:
In the final weeks of this Congress, Democrats are making a last-minute push to confirm a number of President Biden’s judicial nominees.
Our White House correspondent, Laura Barron-Lopez, has more.
Laura Barron-Lopez:
President Joe Biden has appointed 221 federal judges during his time in office. But with several outstanding appointments, Democratic Party leaders are racing against the clock to secure confirmations that could shape the judiciary for decades.
To understand the impact of these appointments, I’m joined by Stephen Vladeck, law professor at Georgetown University.
Professor Vladeck, thank you so much for joining us.
Senate Democrats are trying to confirm as many of President Biden’s judicial nominees as possible before the end of this year, before the end of the 118th Congress. Where do things stand right now?
Stephen Vladeck, Georgetown University Law Center:
Where we are right now basically is that Senate Democrats and Senate Republicans have basically entered into a deal where the Senate Republicans have largely acquiesced in at least procedural maneuvers that will allow for President Biden to fill most of the outstanding district court vacancies that are still out there.
So this is the lowest level in the federal court system, in exchange for which Senate Democrats have been — agreed to drop four circuit court nominees, so four judges who would have served on the intermediate federal courts. And the idea here was that at least two of those four circuit court nominees might not have had majority support from the Democrats in the first place.
The other two would have taken up a lot of procedural time that might have gotten in the way of confirming the rest of President Biden’s nominees to the trial courts.
Laura Barron-Lopez:
How could giving up those four nominees that you just mentioned have an impact on the federal judicial system overall, especially at the appellate level?
Stephen Vladeck:
We talk a lot, of course, about the Supreme Court. We don’t talk enough about the lower federal courts. There are 13 federal courts of appeals. Seven of them have as few as six judges on them. These nominees can be the difference between whether that court has a majority of Democratic appointees, a majority of Republican appointees.
And so I think one of the questions that we’re going to have to watch is whether, for each of those four vacancies, are we going to see any effort from the judges who are creating the vacancies to potentially actually postpone their retirement and stay on the job until maybe there’s another Democratic president at some point in the future?
Or are all four of those seats now going to be open to be filled by President Trump and the Republican-controlled Senate come January? I don’t think we fully know yet how that’s going to play out.
Laura Barron-Lopez:
We should note that, during the lame-duck session, when Donald Trump was in his first term, the Senate confirmed 14 federal judges, and the president-elect’s 234 judicial appointments during his first term had a huge impact on a number of issues from abortion access to immigration and student loans.
Why are these appointments such an important part of a president’s legacy?
Stephen Vladeck:
Judicial appointments are often the thing that lives on the longest after a president has left office.
I mean, just recently, we had the last judicial appointee by President Carter leave the bench. President Carter hasn’t been president for 43 years. So it’s always been this way. I mean, John Adams’ most probably signature accomplishment as president was appointing Chief Justice John Marshall, who would serve until 1835, 34 years after Adams’ presidency.
When a president gets so many nominees, as President Trump did, as President Biden has, you really get to a point where they can almost single-handedly transform, if not the entire federal judiciary, then at least entire lower federal courts. This has massive long-term effects that go well beyond just an individual president’s substantive policies.
Laura Barron-Lopez:
Looking ahead, how do you see federal judges playing a role during Donald Trump’s second administration, given that impact that you’re talking about?
Stephen Vladeck:
For better or for worse, come January 20 when President Trump is sworn into office, he’s going to have Republican control in both chambers of Congress. The margin of Republican control in the Senate is going to be such that he won’t have the same constraints that he faced in his first term from the likes of Senator John McCain.
And so I think that’s going to put that much more pressure on courts, whether the judges were appointed by President Trump or appointed by President Biden or somebody else, to be that bulwark, to actually be the last line of defense for those contexts in which President Trump and/or his appointees in the Defense Department, the Justice Department are pushing the envelope.
Part of why we have courts, even though the judges are picked by presidents, is the idea that because these judges can serve for so long, because they can stay on the court no matter what the president who appointed them thinks of them, they have this independence that at least theoretically allows them to stand up even to the president who appointed them.
Whether that’s going to happen with a second-term President Trump obviously remains to be seen, but at least that’s the idea.
Laura Barron-Lopez:
Professor Vladeck, I want to ask you about some recent news by special counsel Jack Smith to dismiss both the election interference and the classified documents case against president-elect Donald Trump, citing the DOJ’s policy that it’s unconstitutional to prosecute a sitting president.
What precedent does this decision set for politics potentially being used to beat the legal system?
Stephen Vladeck:
The problem is that, in the alternative world in which this case went forward, you would have the very awkward position of President Trump being prosecuted by his own Justice Department, by officials who, in theory, right, answer directly to him.
So, I think this was in some respects a practical inevitability that, once President Trump comes to office, obviously, this case was going away. Now it can end on the special counsel’s terms, as opposed to President Trump’s terms.
But I think there’s a much deeper problem here, which is how we got to this point in the first place. And just if we look back, I mean, I think it’s going to end up being incredibly fateful that, in January of 2021, the Senate didn’t have the votes to convict President Trump in a second impeachment trial, even though it had seven Republican senators who were willing across the aisle and vote against President Trump.
That was a remarkable, to me, missed opportunity. And I think one of the questions going into President Trump’s second term is just how much of a missed opportunity is that going to turn out to be. Some of that I think is going to depend not just on how President Trump handles his second term, but on exactly what we have been talking about, the extent to which the courts are both willing and able to stand up to a President Trump if he tries to cross the lines again.
Laura Barron-Lopez:
Professor Stephen Vladeck, thank you for your time.
Stephen Vladeck:
Thank you.