President Biden Makes A Deal With The Devil To Fill Kentucky Judgeships

Christopher Kang explains the problem President Biden faces from Republican obstructionism in getting his federal judicial nominees approved by the Senate. Democrats Are Headed for a Disaster With Unfilled Judicial Vacancies:

At the end of his first year in office, President Joe Biden’s staff rightly trumpeted the fact that he had nominated and confirmed a historic number of judges at the start of his first term in office. After decades of Republicans outpacing Democrats in focus on the courts, it was welcome news. But today, as terrible decisions from the Supreme Court offer a stark reminder of the importance of the judiciary, we face a tough reality: even an historic pace has not been enough to keep up with the rate of judicial retirements, and President Biden and Senate Democrats are on track to leave more than 60 judicial vacancies open at the end of this year. With the possibility looming that Republicans may retake the Senate, we know that leaving any vacancy open in January could well mean letting a newly empowered Mitch McConnell blockade them, just as he did President Barack Obama’s picks, from Merrick Garland’s Supreme Court nomination to dozens of lower court nominees.

It’s time for Senate Democrats and the Biden White House to push beyond their current practices in order to fill all of the judicial vacancies by the end of this Congress. As someone who worked on judicial nominations in the Senate and the Obama White House, I know how hard it can be for Democrats to challenge norms, but we have seen Republicans stop at nothing in their relentless push to take and retain control of the federal judiciary to impose their extreme, partisan agenda on a majority of Americans who oppose it. Our federal courts are so far out of balance that we need the president and the Senate to do everything in their power to ensure justice and equality. That means filling every vacancy, even if it means breaking with the few remaining judicial confirmation process norms left in McConnell’s wake or standing up to Republican senators. Beginning to bring balance to our judiciary is more important than respecting Senate traditions.

A more aggressive approach to judicial confirmations starts at the White House. Today, there are more than 80 judicial vacancies without nominees, out of 119 announced vacancies. One of the driving causes for this is too much White House deference to senators—both Democratic and Republican. The Biden administration needs to take a more assertive approach and show it is willing to bypass Senate tradition if senators are not proving good partners.

In states with Democratic senators, the White House is honoring a longstanding tradition that allows senators of the president’s party to recommend district court candidates to the White House. This is fine, but the White House needs to be firmer in enforcing its own deadlines in states where senators are moving too slowly. Even before Biden’s inauguration, White House Counsel Dana Remus told Democratic senators to submit recommendations within 45 days of a vacancy being announced, but it is clear from the number of long pending vacancies without nominees that many senators are ignoring this timeline.

To move forward with nominations in states with Republican senators, the White House and Senate Judiciary Chair Dick Durbin must be willing to bypass a Senate tradition known as blue slips, which allow any senator to functionally veto district court nominees in his or her own state. This tradition was weaponized by segregationist senators to stop pro-civil rights judges nominated in their home states, and during the Obama administration, it persisted as an enormous obstacle to diversifying the judiciary. Anyone who thinks the White House can work with Senate Republicans on judicial nominations should look at Wisconsin, where Sen. Ron Johnson recommended a qualified district court candidate, only to abruptly pull his supportafter the nomination was actually announced. It’s worth noting that when Republicans controlled the Senate under Donald Trump, they ignored blue slips from Democratic Senators on circuit court nominees, effectively dismantling that deference for Democrats when they are out of power. Abolishing the blue slip custom once and for all will require cooperation from the Senate, but the White House should force the issue and expose the absurdity of the system by nominating qualified, professionally diverse nominees in these states and daring the Senate to block them.

The White House increasing nominations will be of little use, though, if the Senate Judiciary Committee ends up serving as a bottleneck. Before being confirmed, each judicial nominee must appear before the committee for a hearing. As a result, the number of hearings scheduled and the number of nominees who can appear at each hearing are probably the most important factors in determining how many nominees will be confirmed before the end of this Congress. Right now, committee Democrats are following norms and recent practices, but this is simply not sufficient to fill every judicial vacancy—and indeed, sets a path that would leave more than 60 seats open.

The norm is for the committee to hold a nomination hearing every two weeks that the Senate is in session. At that pace, it will hold only six more hearings with enough time for committee votes this year. The current practice—which was set when Republicans expanded it to process Trump judges more quickly—calls for two circuit and three district nominees per hearing. So this schedule would allow for hearings for only 30 judicial vacancies, while 65 receive no committee consideration at all—and that assumes that every hearing slot is used for lifetime judicial nominees, even though just last week, the committee gave a slot to a Department of Justice nominee.

Despite this stark reality, a judiciary committee aide recently told Bloomberg News, “I don’t think there’s any reason for us to change the way we’re operating.” [You’re fired!] That’s simply wrong. The judiciary committee must take a page out of the playbook Senate Republicans used during the Trump administration and schedule additional hearings and add to the number of nominees who can be considered at each hearing. Holding more hearings may be less convenient for those involved, but with so much at stake, it’s essential the committee follow the Republican model set during the Trump administration, which included holding hearings in consecutive weeks and even while the Senate was in recess.

Once nominees receive committee hearings and votes, they will need time on the Senate floor to be confirmed. Republicans are doing everything they can to slow down Biden nominees, and if President Biden and the judiciary committee ramp up the speed of nominations, Senate Democrats will need to match Republicans’ fortitude, skipping or delaying recesses and staying in Washington over weekends to vote if necessary.

None of these steps should require the Biden administration to compromise on the quality of judges it is putting forward … The White House must not undermine its well-earned legacy on the courts by curbing its focus on professional diversity or accepting deals that would include conservative extremists. Instead, it must rally Democrats together—at every stage of the nomination and confirmation process—to fill every vacancy with judges dedicated to justice and equality. More than 30 national organizations already agree. Now more than ever, our courts—and our country—demand nothing less.

President Biden, however, is not following this last piece of advice, because he was a creature of the Senate for far too long. He apparently believes that he can make a deal with the devil, Mitch McConnell, to get his judges confirmed in Kentucky if he just gives the devil the judge that he wants in his home state. You would be right to question “how in God’s name can you trust the devil to honor his word and live up to this bargain?” You can’t. You can NEVER trust Mitch McConnell. He is the devil.

Mark Joseph Stern reports, The Biden-McConnell Deal to Make an Anti-Abortion Advocate a Federal Judge Is Still On:

President Joe Biden struck a deal with Senate Minority Leader Mitch McConnell to nominate Chad Meredith, a Republican anti-abortion advocate, to a federal judgeship on the Eastern District of Kentucky, Slate has confirmed. Under the arrangement, Meredith would take the seat currently occupied by Judge Karen Kaye Caldwell, a George W. Bush nominee. Caldwell submitted her move to senior status on June 22, which, once complete, will allow Meredith to take the seat. A lawyer with connections to the Kentucky governor’s office who is familiar with the agreement told Slate that Caldwell conditioned her move upon the confirmation a successor—specifically, the conservative Meredith. In exchange, McConnell will allow Biden to nominate and confirm two U.S. Attorneys to Kentucky.

Wait. This is just a two for one deal? In Kentucky? What kind of grand bargain is that? “You get your one judge in Kentucky, and I get all 60+ federal judicial vacancies filled on fast-track approval. Capice?” That’s how you bargain with the devil.

The deal has prompted fury from Democrats since it was first reported by the Louisville Courier Journal’s Andrew Wolfson and Joe Sonka on Wednesday. Kentucky Gov. Andy Beshear, a Democrat, confirmed the planned nomination at a Thursday press conference. Democratic Rep. John Yarmuth also confirmed the White House’s intent to nominate Meredith in an interview with Slate on Friday. Yarmuth described the agreement as “indefensible” and said he wrote “the strongest text message I have ever written to anybody” to a contact at the White House expressing his “outrage.”

Beshear and Yarmuth were especially frustrated because they had intended to submit potential nominees as soon as vacancy arose on the court. The White House was aware of this plan, but did not inform them that Caldwell planned to take senior status. As a result, Beshear and Yarmuth had no opportunity to make recommendations. Instead, the Biden administration coordinated with McConnell to tee up Meredith’s nomination once Caldwell announced her intent to leave the seat. According to Slate’s source in Kentucky, McConnell agreed, in exchange, to stop blocking Democrats’ preferred nominees for U.S. Attorney in the state [of Kentucky]. McConnell has sought to place his own allies in these positions—including prosecutor Thomas B. Wine, who as the Jefferson County Commonwealth’s Attorney refused to charge the police officers who killed Breonna Taylor.

“I understand how brutally manipulative Mitch is,” Yarmuth told Slate, “but at some point you have to stand up to him. You have to just confront him and say, ‘no, we’re not gonna appoint your people. We’re not gonna let Mitch McConnell appoint judges and other federal officials in a Democratic administration.’”

* * *

Presidents routinely strike deals to nominate a package of judges to district courts that includes individuals put forth by each party. Even President Donald Trump nominated some moderate district court judges favored by Senate Democrats, who, as a compromise, voted to confirm the president’s far-right nominees. But Senate Republicans would not have even considered a nominee with a strong record of pro-choice advocacy. When Trump named Michael Bogren, who was put forward with bipartisan approval, to a district court, GOP Sen. Josh Hawley tanked the nomination—solely because Bogren had defended a city’s LGBTQ non-discrimination ordinance while in private practice. Hawley angrily accused Bogren of being anti-Catholic in an act of baseless assassination. Even the Federalist rose to Bogren’s defense, but it didn’t matter. The White House pulled his nomination.

It is impossible to imagine a Republican-controlled Senate confirming a Democratic judicial nominee with a meaningful record of reproductive rights advocacy. In fact, Biden has conspicuously avoided nominating abortion rights lawyers for fear of triggering a GOP backlash; they are dramatically underrepresented among his judicial appointments. Now, however, Biden is poised to send Meredith’s nomination to a Democratic-controlled Senate—in the wake of a catastrophic Supreme Court decision overruling Roe v. Wade.

It remains unclear whether he will go through with the planned nomination. This episode marks Biden’s first major rift over judges with Democrats, who have so far been pleased with the president’s nominees, if not the pace of nominations. On Friday, Yarmuth told Slate that, according to his White House contact, the president “is aware of my concern and the governor’s concern,” but has not yet responded. The congressman added, of Meredith: “This is a bad appointment for Kentucky. It’s a bad appointment for the federal courts. This guy is aligned with the Federalist Society. He represents everything that is anathema to Democrats.”

In his remarks regarding the Supreme Court overturning Roe v. Wade, Biden said:

This fall, Roe is on the ballot. Personal freedoms are on the ballot. The right to privacy, liberty, equality, they’re all on the ballot.

Until then, I will do all in my power to protect a woman’s right in states where they will face the consequences of today’s decision.

Giving the devil an anti-abortion extremist judge in Kentucky does not demonstrate that you “will do all in my power to protect a woman’s right in states where they will face the consequences of today’s decision.” It is exactly the opposite of ding that. This sends the wrong message.

And this raw deal does not get the 60 federal judiciary vacancies filled.

As with all Faustian bargains, the devil wins. Again.