Biden Aims to Appoint Liberal Judges After Trump's Conservative Push

By Jess Bravin, The Wall Street Journal

29 November 20

President-elect will seek nominees who see robust role for judiciary in addressing national problems, protecting individual rights

resident-elect Joe Biden in January will begin an effort to recalibrate the federal judiciary with more liberal appointees who embrace a robust judicial role in addressing national problems and protecting an evolving spectrum of individual rights, a shift from the conservative appointees under President Trump.

“Joe Biden thinks the law should be interested in protecting the little person,” said Cynthia Hogan, who served as Mr. Biden’s counsel when he was vice president and on the Senate Judiciary Committee. “Not to determine an outcome, but to say people should not be at a disadvantage because they’re working class, they’re poor, they’re Black, they’re women, they’re immigrants.”

Biden advisers say they will have compiled a list of potential nominees by Inauguration Day—including a short list for the Supreme Court, where the eldest justice, President Clinton appointee Stephen Breyer, is 82 years old.

Mr. Trump and Senate Republicans are determined to leave no vacancies for Mr. Biden to fill. But once he takes office, Clinton and Obama appointees might begin to step down with the assurance that a Democratic president can appoint like-minded successors.

Mr. Biden’s ability to appoint judges could be further constrained if Republicans maintain control of the U.S. Senate. The chamber’s majority is at stake in two Senate runoff races on Jan. 5 in Georgia. Unless Democrats win both, Sen. Mitch McConnell (R., Ky.), whose top objective has been conservative control of the judiciary, will remain majority leader.

In a Republican Senate, Mr. Biden’s nominations would be managed by Sen. Charles Grassley (R., Iowa), who is expected to reclaim the Judiciary Committee chairmanship. Mr. Grassley, who recently tested positive for coronavirus, and Mr. Biden served there together for years.

“They are both the old-school-type senators,” able in the past to cut deals that made the institution function, said a Senate Republican aide. But Republicans are cautious about chances for compromise. “Is it the same Joe Biden that Mitch McConnell and Chuck Grassley are used to working with?” the aide said.

Mr. McConnell’s office had no comment, other than referring to the Republican leader’s intent to continue confirming Trump nominees through year’s end.

Mr. Biden’s judicial philosophy is rooted in the liberal approach the Supreme Court took in the 1950s and 1960s under Chief Justice Earl Warren, when it expanded individual rights, enforced protections for criminal defendants and dismantled state-enforced racial segregation in schools and public places.

His expectations about congressional action were tempered through years on the Senate Judiciary Committee, where he served as ranking Democrat and then chairman from 1981 to 1995. During his tenure, he oversaw the defeat of conservative Robert Bork for a seat on the Supreme Court, and the subsequent confirmation of another conservative, Justice Clarence Thomas, both of whom Mr. Biden opposed.

Mr. Biden considers judicial appointments a priority, advisers say, even if problems such as the coronavirus pandemic, economic recession and climate change claim his immediate attention. He is the first former Senate Judiciary Committee chairman to be elected president since Martin Van Buren in 1836.

“Biden taught constitutional law. He’s written about it. He’s thought a lot about this. And he’s probably played a bigger role in selecting justices than almost anybody in recent history,” said Mark Gitenstein, a former Judiciary Committee chief counsel under Mr. Biden. “We want to have as many vacancies as possible and get as many modern progressives in those slots as we can.”

Harvard law professor Laurence Tribe, an informal Biden adviser since the 1980s, said Mr. Biden believes in strong “national governmental power to deal with emerging problems,” a liberal constitutional approach that the Supreme Court embraced during the New Deal and that underpins federal initiatives from Social Security to the Civil Rights Act of 1964.

At the same time, Mr. Biden sees the Constitution protecting individuals not through “a laundry list of rights, but a set of fundamental values and principles,” Mr. Tribe said. That approach has led to Supreme Court decisions that invalidated bans on contraceptives, recognized abortion rights and entitled same-sex couples to marry, which Mr. Biden endorsed before President Barack Obama, Mr. Tribe noted.

Ms. Hogan said Mr. Obama assigned Mr. Biden to lead the search when a vacancy arose in 2009. He recommended then-Judge Sonia Sotomayor, who rose from a Bronx, N.Y., housing project to a federal appeals court. Another member of the liberal wing on the court, Justice Elena Kagan, also carried a Biden imprint; she had worked for him at the Judiciary Committee during the late Justice Ruth Bader Ginsburg’s confirmation.

There is no question that Biden nominees will look different from those selected by Mr. Trump, who relied on leaders of conservative groups such as the Federalist Society to recommend candidates. Mr. Trump appointed more than 200 federal judges, of whom about 75% were men and 85% were white, according to the Pew Research Center. In contrast, some 45% of Obama appointees were women and 35% nonwhite.

“We want to make sure that the courts, and not just the Supreme Court, really are a mirror of America,” said Ted Kaufman, a longtime Biden confidant and former Delaware senator who is co-chairman of the presidential transition.

During the campaign, Mr. Biden said he intended to appoint the first Black woman to the Supreme Court.

Conservative activists are likely to strenuously resist Mr. Biden’s Supreme Court picks—and to some it is personal. Judge Bork’s rejection by the Democratic-controlled Senate, in a 58-42 vote that included six Republicans voting against him, remains an open wound for many conservatives more than 30 years later.

“Biden led the charge, and he was indistinguishable from [Sen. Edward] Kennedy and the rest of them,” said John Bolton, who studied under Mr. Bork at Yale Law School and, as a Reagan Justice Department official, worked on the Bork nomination. “Conservatives never forgot that.”

The justice ultimately confirmed to the seat, Anthony Kennedy, leaned conservative. But as a swing vote whose opinions curbed some criminal punishments and recognized LGBT rights, Justice Kennedy shared the view, as Mr. Biden put it during his confirmation hearings, that “our rights can expand with America’s proud and evolving heritage of liberty.”

Mr. Gitenstein said there was some irony that Mr. Biden will take office just as the Supreme Court firewall he helped build against conservative jurisprudence collapsed, after Mr. Trump appointed Justice Brett Kavanaugh to succeed Justice Kennedy.

“We did a good job in the Bork fight and it took them 30 years to reverse it,” Mr. Gitenstein said. “But they did.”

Mr. Biden could also meet resistance from his left flank. Liberal groups say that ethnic and gender diversity isn’t enough.

“The previous two Democratic administrations made diversity a priority,” but most appointees “were prosecutors or came from large corporate law firms,” said Nan Aron, president of the Alliance for Justice. Progressive organizations are working to identify a broader range of candidates—“public-interest lawyers, civil rights lawyers, public defenders, plaintiffs’ lawyers,” Ms. Aron said, as well as legal academics.

Mr. Biden in the 1980s positioned himself against the Reagan administration’s campaign for “original intention” jurisprudence—an antecedent of the originalist method espoused by Trump appointees such as Justice Amy Coney Barrett.

Still, Mr. Biden didn’t follow liberal orthodoxy in lockstep. While personally opposed to the death penalty, he disagreed with justices who concluded that the Constitution prohibited it. And though he is a longtime supporter of a woman’s right to an abortion, he was critical of the reasoning behind the 1973 precedent recognizing them; “I don’t think Roe is great constitutional law,” he told aides, according to Mr. Gitenstein’s account of the Bork nomination, “Matters of Principle.”