WASHINGTON – The Democratic-led Senate is poised to confirm this President Joe Biden‘s 200th federal judge Wednesday, a milestone that highlights a sharp contrast with his election rival, Republican former President Donald Trump, as they try to shape the courts over the next four years.
It is unclear whether Biden will overtake the 234 judges Trump secured during his presidential term. But the winners of the presidency and Senate majority will have the power to shape the courts in coming years, and the two men use dramatically different criteria when choosing nominees.
Whoever occupies the White House in the next term could even choose one or more new Supreme Court justices, which could shift or entrench the current 6-3 conservative majority. By the time the winner is sworn in, conservative Justice Clarence Thomas will be 76 and conservative Justice Samuel Alito will be 74. The next oldest member of the court is liberal Justice Sonia Sotomayor, who will be 70. Chief Justice John Roberts will turn 70 a week after being sworn in.
‘Father Time marches on. There may be some vacancies for whoever wins. And tomorrow we could all get hit by a car,” said Sen. Lindsey Graham, R-S.C., a candidate to chair the Judiciary Committee if Republicans win the Senate majority. “But the four-year president – one of the biggest prizes is the court. So there may be some Republicans who think, ‘Now is the time for me to leave so that my replacement will be someone of my philosophy,’ and vice versa.”
In addition to selecting new justices, the two parties have different views on the Supreme Court, with Democrats saying they are looking at new rules, such as a binding code of ethics and standards for judicial denials, and a more active role in overseeing the court. Republicans, content with the conservative majority they’ve built, are telegraphing a hands-off approach that would preserve the court’s existing structure.
Graham said the election’s stakes for the courts can be summed up simply as: “More conservative if we win. More liberal when they win.”
Biden and Trump’s court filings
Biden’s judges include many former civil rights lawyers, labor lawyers and public defenders, breaking from the pattern of prosecutors and corporate lawyers that previous presidents have tended to rely on. More than 60% of Biden’s judges are women, and more than 60% are non-white, the White House said. It says he has appointed more black women to circuit courts than all previous presidents combined, and more Hispanic and Asian American judges than any other president.
“For decades, Joe Biden has worked to protect and strengthen the integrity of our judicial system – and as president, he appointed the most diverse federal judges ever, all of whom are committed to the Constitution and the rule of law,” Biden said. campaign spokesman Charles Lutvak said in an email.
“Trump has spent four years trying to reform the courts to overturn the election he lost and deny Americans’ basic rights. But if he gets four more years, things will get even worse: he will appoint people who share his extreme ideology. These elections are nothing less than a choice between democracy and dictatorship,” he added.
Trump used a different standard in selecting judges, placing a premium on youth and conservative credentials. He chose a much higher share of white and male nominees than Biden and a smaller share of non-white Americans than his three predecessors, according to the Pew Research Institute.
In 2022, Biden chose Ketanji Brown Jackson, a former public defender, as the first Black woman to the Supreme Court; she has since become a reliable member of the liberal bloc. It is unclear whether Biden will fill another vacancy before the November election. In his four years, Trump picked three members of the conservative bloc — all 55 or younger when they were nominated.
“I faced despicable attacks from the radical left to confirm three major Supreme Court justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. They are great. Oh, they were very happy when I got three,” Trump said Saturday at the National Rifle Association convention.
In his speech, Trump recalled talking to one of his “people” when he was president, who told him about judicial nominees: “We like people in their 30s, so they’re going to be there for 50 or 40 years.”
Trump said he remembers thinking, “Yes, they are exactly right.”
Democrats are keeping an eye on the Supreme Court’s ethics rules
On the priority list for Democrats is Supreme Court ethics legislation, a case sparked this week by reports that an upside-down American flag flew outside Alito’s home for days after the Jan. 6 attack on the Capitol, when rioters waved the symbol in an attempt to overthrow everything. the 2020 election results and keep Trump in power.
“We have a lot of bills that we want to get to the floor, but this is one that is top of mind,” Senate Majority Leader Chuck Schumer told reporters on Tuesday, adding that it was “really wrong to do” on Alito’s part, “and it casts some doubt on his impartiality.” (Alito told Fox News that his wife hung up the flag in a dispute with neighbors.)
Meanwhile, Senate Minority Leader Mitch McConnell, R-Ky., defended Alito when asked about the inverted flag and whether Alito should recuse himself from Trump-related matters.
“There’s just non-stop attacks on the Supreme Court, week after week after week. And so I’m not going to dignify that with a response. We must leave the Supreme Court alone,” he told reporters on Tuesday. “Protect them from people who entered their neighborhood and tried to harm them.”
The progressive advocacy group Stand Up America wants to go further and encourage Democrats to overhaul the Supreme Court in the elections. It commissioned a national poll by Democratic firm Hart Research Associates, first shared with NBC News, that found overwhelming support for term limits for judges. By 64% to 24%, registered voters said they favor 18-year terms for current and future justices, which would allow each president to fill two vacancies in a four-year term.
When voters in the poll asked how they would respond if a congressional candidate supported 18-year-old judge limits, 45% said it would make them “more likely” to vote for them, while 20% said it it would make them “less likely.” ‘ and 35% said it ‘would have no effect anyway’.
(Hart Research Associates is conducting the NBC News poll with Republican pollster Public Opinion Strategies.)
A White House spokesperson noted that Biden has endorsed Supreme Court ethics and transparency law, but did not comment on whether he supports term limits for judges.
Democrats, defending a fragile 51-vote Senate majority in a tough election cycle, say they worry about a further rightward move by the Supreme Court if they don’t win the election.
“I don’t even want to think about it. I have enough sources of fear and sadness,” said Sen. Richard Blumenthal, D-Conn. “It’s a scary thought, because obviously some of them could resign at any moment to make way for the next wave of far-right MAGA judges – who are not real judges, just politicians in robes.”
This article was originally published on NBCNews.com
