How Biden Is Addressing One of the Ways That Republicans Are Undermining Democracy

When tallying Biden's accomplishments in 2021, this one should rank up there with things like passing the CARES Act and the infrastructure bill: 

Overnight, the Senate confirmed Biden’s 40th judge — the most since Reagan, who also got 40 judges confirmed in his first year. Biden’s confirmed judges also far surpass the number of judges Trump got confirmed in his first year (18)

— Seung Min Kim (@seungminkim) December 18, 2021

The significance of this accomplishment goes beyond just the numbers. 

40 Article III federal judges confirmed in 2021.

More than half are women of color/Native women, 80% are women & more than 2/3 are people of color or Native. Many have public defender or civil rights experience.

THIS is what making our courts fairer & more inclusive looks like. pic.twitter.com/TBxBsVsuHk

— The Leadership Conference (@civilrightsorg) December 18, 2021

To date, President Biden has nominated a total of 73 federal judges. Here's what those numbers look like:

The President's selections have included 53 women, making up 73% of all judicial nominees, as well as 20 African Americans, 15 Hispanics and 13 Asian American Pacific Islander picks.

They also include 21 public defenders, 16 civil rights lawyers and five labor lawyers, as the administration has sought to elevate nominees with more diverse professional backgrounds.

That last part is significant in that most federal judges have professional backgrounds in prosecution and/or corporate law.  

For some perspective, there are currently 870 authorized Article III judgeships: nine on the Supreme Court, 179 on the courts of appeals, 673 for the district courts and nine on the Court of International Trade. Here is how Pew Research summarized the impact of recent presidents on the courts.

In terms of active judges, here is how things stack up:

As we all know by now, Mitch McConnell's main goal during Trump's presidency was to stack the courts with extremist judges. Starting back in 2009, his strategy of total obstruction effectively neutered the Senate. Even with the majority, McConnell made it clear that he wasn't interested in legislating - other than to pass tax cuts for the wealthy. Perhaps you'll recall how he embraced the title of being the "Grim Reaper" when it came to taking up bills passed by the House. 

McConnell knows that the GOP is slipping into minority status. As Zachary Roth outlined in his book, The Great Suppression, he calculated that being outnumbered doesn't have to mean losing. After years of Republican attacks on Democrats for "judicial activism," that is exactly what McConnell aims to achieve for his party. They've simply changed the name and call it "judicial engagement."

Judicial engagement turns the whole concept of judicial restraint (something we used to hear a lot about from conservatives) on its head. It suggests that, rather than giving the benefit of the doubt to the elected branches of government, judges should strike down laws that they think violate the Constitution. We saw that most notably with their attempts to eliminate Obamacare.

As Republican obstruction brings legislating to a halt, presidents have been turning to executive orders to get things done. Those are immediately challenged in court. Of course, as we're seeing with reproductive rights, an extremist Supreme Court also has the power to overturn judicial precedents. 

There has been a lot of attention paid to the way that Republicans are seeking to undermine democracy with things like voter suppression and gerrymandering. But it is important to keep in mind that "judicial engagement" is part of that process as well. Judges are appointed for a lifetime and cannot be held accountable by voters. 

All of that is to explain why Biden's record on federal judges is one of his most significant accomplishments. There's still a long way to go to turn things around, but he's off to a great start.