President Joe Biden announced eight new federal judicial nominations on Wednesday as the White House seeks to maintain its rapid pace of nominations — and confirmations — to the federal bench.
The announcement, which marked Biden’s fifth wave of judicial nominees, includes his intent to nominate two circuit court selections and comes as Democrats are pressing to quickly fill openings across the federal judiciary with their slim majority in the US Senate.
It’s a central priority for Biden and Senate Majority Leader Chuck Schumer, a New York Democrat who has already shepherded seven judicial nominees through to confirmation, including two high-profile circuit court selections in recent weeks.
That number is notable for its historical context: It puts Biden on the fastest pace for judicial confirmations in a first presidential term in more than 50 years. The last president to have seven confirmations by this point was Richard Nixon in 1969, according to a White House official.
Biden plans to nominate Toby Heytens, the solicitor general for the Commonwealth of Virginia, to the 4th US Circuit Court of Appeals, and Jennifer Sung, a member of the Oregon Employment Relations Board, to the 9th US Circuit Court of Appeals.
Sung, a labor lawyer and former union organizer, would mark the first judge of Asian American Pacific Islander descent from Oregon to serve on the 9th Circuit if confirmed by the Senate.
Biden will announce his intent to nominate four individuals for district court slots, including Patricia Tolliver Gates, an assistant US attorney who would become the second woman of color on the federal bench in Virginia.
Biden will also announce his intent to nominate Jane Beckering, a Michigan Court of Appeals judge, to the US District Court for the Western District of Michigan; Shalina Kumar, the chief judge on the Oakland County 6th Circuit Court, to the US District Court for the Eastern District of Michigan; and Michael Nachmanoff, US magistrate judge for the Eastern District of Virginia, to the US District Court for the Eastern District of Virginia.
Armando Bonilla, the vice president of ethics and investigations at Capitol One, who Biden plans to nominate to the US Court of Federal Claims, would mark the first Hispanic judge on the court if confirmed.
Biden will also announce his intent to nominate Carolyn Lerner, the chief circuit mediator for the US Courts of the DC Circuit, to the US Court of Federal Claims.
The Presidential Commission on the Supreme Court held its first public hearing with witnesses on Wednesday. Experts Debate Reducing the Supreme Court’s Power to Strike Down Laws:
Legal experts clashed on Wednesday over the wisdom of proposals to reduce the Supreme Court’s power to strike down democratically enacted laws (see today’s opinions to make the case in favor).
But they spent limited time on the highest-profile idea associated with the panel — the push by some liberals to expand the Supreme Court, in response to Republican hardball moves that have left it with a 6-to-3 conservative majority even though Democrats have won the popular vote in seven of the past eight presidential elections.
While House Democrats have introduced a bill that would add four seats to the Supreme Court, it stands scant chance of being enacted under present political conditions.
Instead, the hearing largely focused on other ideas. In particular, the witnesses extensively debated ideas for limiting the court’s power of judicial review — such as by stripping its jurisdiction to hear constitutional challenges to particular laws [like the Voting Rights Act], requiring a supermajority vote of the justices to strike down an act of Congress, or giving lawmakers the power to override rulings invalidating statutes.
Nikolas Bowie, a Harvard Law School professor, denounced the power of the Supreme Court to strike down laws enacted by Congress as an “antidemocratic superweapon” and said, “I encourage you to advocate for reforms that will abolish the practice.”
Mr. Bowie cited a 2012 ruling that hobbled Congress’s expansion of Medicaid coverage to millions of people, and one in 2013 that struck down a key part of the Voting Rights Act that had protected minority voters in jurisdictions with histories of discrimination. He noted that many foreign democracies function without a high court that wields such sweeping power.
[Mr.] Biden has charged the 36-member, ideologically diverse commission — which is led by Bob Bauer, an N.Y.U. Law professor who served as a White House counsel under President Barack Obama, and Cristina M. Rodríguez, a Yale Law School professor and former Justice Department official — with producing a report assessing ideas for changing the court.
Rather than clearly endorse or repudiate the court expansion proposal just ahead of the election, Mr. Biden punted in October by saying he would create a commission to assess potential changes to the judiciary. While the panel is not charged with making specific recommendations, its report may help set the stage for debate in Congress.
A few witnesses addressed court expansion, generally either arguing that it would delegitimize the court and inevitably lead to further expansions by Republicans, or portraying it as a “break glass” measure of last resort to deal with a hypothetical court that is consistently out of step with overwhelming popular opinion.
Among the ideas the witnesses engaged with more deeply: whether to change how the court selects which cases to hear in order to address the plummeting number it has decided in recent years, whether to reduce its ability to decide major legal issues without full briefings and arguments, and whether to replace lifetime tenure for Supreme Court justices with term limits.
Paul Waldman argues at the Washington Post, Stephen Breyer is making a strong case for Supreme Court term limits.
“In an age of increasing polarization, there’s no question that Supreme Court nominations have become an almost entirely partisan affair, and this is going to potentially cause grave harm to the court’s legitimacy,” said Maya Sen, a Harvard public policy professor. “And I strongly encourage members of this commission to consider term limits, which could represent a powerful tool to reverse this trend.”
The term-limit discussion focused on a proposal to move to staggered, 18-year terms with seats regularly coming open every two years, rather than only when a justice dies or chooses to retire, perhaps coupled with mandating up-or-down Senate confirmation votes on nominees.
Such a change might help reduce the escalating partisan warfare over confirmations, argued Michael McConnell, a retired appeals court judge who is now a Stanford University law professor. He traced the fights back to the bitter confirmation battle in 1987 that defeated President Ronald Reagan’s conservative nominee, Robert Bork. [It actually predates Bork, going back to LBJ trying to elevate Justice Abe Fortas to Chief Justice, which was filibustered. Nixon nominated Clement Haynsworth and G. Harrold Carswell to the court, but the nominations were rejected by the United States Senate.]
Rosalind Dixon, a University of New South Wales law professor, argued that 18-year terms were too long. Pointing to other countries that restrict the service of high-court judges, through either term limits or mandatory retirement ages, she said their terms are shorter. In Germany, for example, they are 12 years, she said.
Even as the debate played out, Samuel Moyn, a Yale Law School professor — who backed the idea of shifting power away from the court to “remedy a democratic deficit in our constitutional law” — suggested that the law professors on Mr. Biden’s commission and composing most of its witnesses should be humble about the scope of their influence. Ultimately, he said, the Constitution gives Congress broad authority to design the judiciary.
“Supreme Court reform is a political choice,” he said. “The Constitution leaves it up to us — not on this Zoom call, but as a people always experimenting with what it should mean to rule ourselves instead of letting others do so even when it saves ourselves some trouble. Pending enough political support, the choice to rule ourselves more democratically rather than continuing the transfer of excessive power to the Supreme Court is our best choice.”
All good suggestions Congress should consider and weigh. It will take a constitutional amemdment to change lifetime tenure, however.
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