How Biden has restored fairness to the courts

President Joe Biden reached a milestone last week with the Senate’s confirmation of Angela Martinez and Dena Coggins, the 200th and 201st judges Biden has nominated to the federal judiciary thus far. Martinez will preside in the U.S. District Court for the District of Arizona, and Coggins will take the bench in the Eastern District of California.

But the confirmation of these judges is worth noting for reasons that go beyond their stellar qualifications.

First, they represent the successful effort by both the administration and Democrats to diversify the federal bench. As pointed out by Illinois Sen. Dick Durbin, chair of the Judiciary Committee, and reported by Kaia Hubbard and Melissa Quinn for CBS News, the Senate under Biden has now confirmed more Black women to the U.S. Courts of Appeal than all prior presidents combined.

Likewise, as detailed by Nick Mourtoupalas for The Washington Post, more judges of color have been confirmed under Biden than any president in history. This represents a drastic departure from the record of his predecessor, Donald Trump. 

As Mourtoupalas notes:

Across the Supreme Court, Circuit, and District courts, 65 percent of Trump’s appointments are White men. Just 13 percent of Biden’s Senate-confirmed appointments so far are White men, according to a Post analysis of self-reported race and ethnicity data from the Federal Judicial Center.

Biden has also successfully confirmed a record number of judges with public defender backgrounds to judgeships for the U.S. Courts of Appeal, and he is the only president in history to have appointed more women than men to the federal bench.

However, there is another reason to applaud Biden’s unique achievement, other than the fact that he’s transforming the federal bench into an institution more representative of actual U.S. society. That reason has become clear during the past four years, as the importance of the federal judiciary has been magnified—and distorted—in ways it never has before.

In a statement marking the confirmation of Martinez, Biden alluded to the crucial role that federal judges now occupy in safeguarding our liberties:

Judges matter. These men and women have the power to uphold basic rights or to roll them back. They hear cases that decide whether women have the freedom to make their own reproductive healthcare decisions; whether Americans have the freedom to cast their ballots; whether workers have the freedom to unionize and make a living wage for their families; and whether children have the freedom to breathe clean air and drink clean water.

The preservation of individual rights for the broader benefit of our society should be a role that all judges aspire to. However, thanks to the efforts of those on the political right, that is simply no longer the case.

No one now believes the tired trope that judges operate solely through a lens of total objectivity and unbiased fealty to the law. That has never actually been the reality, but keeping up the illusion of objectivity has always been an unspoken, necessary aspect to preserve Americans’ faith that the law was being fairly applied. 

Over the past four years, the difference between judges appointed by Democratic and Republican presidents has become stark. On the Republican side, right-wing ideological fanatics—like Samuel Alito, Clarence Thomas, the Fifth Circuit’s James Ho, and Texas’ district judge Matthew Kacsmaryk—have quite literally made themselves household names through their rulings and opinions. These judges have repeatedly proven themselves to be rank, partisan vessels nurtured in Leonard Leo’s Federalist Society think-tank for a single purpose: to achieve right-wing social policies that the Republican party cannot attain through the legislative process.

Because their ideological bias is so blatant, these judges now routinely make the news. Conversely, few, if any, judges appointed by Democratic presidents have attained (or sought) such public and  visible notoriety. The reason these Republican judges are making so many headlines is that their most high-profile decisions invariably involve denying—rather than preserving—the rights of Americans, almost always at the behest of discrete Republican constituents and ideology that serves those specific constituents. Their decisions often involve an abrupt departure from prior law, which is why they make the news. 

But a federal judge should not be making news. Their job is to uphold the law as passed by the legislature and rules passed by federal agencies. Their other job is to uphold the U.S. Constitution, and that, of course, can apply to all laws, state and federal.

When these right-wing judges alter or revisit laws they are charged to uphold—whether it’s a federal statute, state law, or a Constitutional provision—they are in reality not acting as jurists, but as unelected and unaccountable legislators. The nature of their role gives these judges a great deal of freedom in this regard. That leeway, established shortly after the formation of the American republic, permits them to interpret the law and the Constitution as they see fit, even (importantly) as the prevailing culture demands or necessitates. The constraint on that freedom is supposed to be prior precedent, at least in theory.

For over two centuries the tension between the duty to uphold the law and the freedom to interpret it has produced some stark anomalies: patently bad decisions on the part of various courts, Supreme and otherwise, throughout our history. But that’s exactly what those decisions are—Dred Scott, Korematsu, Plessy, and Lochner, to name a few. They are anomalies. That’s why nearly all of those decisions were overruled, disavowed, or otherwise supplanted (Dred Scott by constitutional amendment). They are, in effect, seen as mistakes, and they are generally few and far between. Recognizing these mistakes is how the legal system and U.S. society manages to evolve.

But over the past four decades, the Republican Party grew dissatisfied with the way U.S. society was evolving. It was charting paths that directly conflicted with their goals of amassing financial wealth and imposing their own religious-inspired sensibilities on Americans. Even worse in their view, it was being altered by accommodating the incursion of other races within our boundaries demanding equal treatment. And worst of all, “those people” were often voting in ways that threatened to derail the goals of the right.

So conservatives developed new methods of legal interpretation—based on principles they called “originalism” and “strict construction,” which conveniently fulfilled their own goals while disregarding—or outright trampling—the rights of these racial interlopers. It’s important to recognize that these reactionary theories were fairly recently considered fringe, invented out of whole cloth, wholly to serve Republican goals that they could not otherwise achieve under our Constitutional system.

At first, this process moved slowly, eroding constitutional protections in criminal procedure and administrative law, areas where this relatively quiet revolution would not face significant public pushback. But the more cases that were decided employing these novel philosophies, the deeper they became entrenched. For decades, the federal judiciary contented itself with chipping away laws, or reinterpreting the Constitution in ways it preferred.

But U.S. society still did not cooperate. It became more complex, resulting in more and more people demanding equal treatment under the law, which often conflicted with Republican constituencies.

Fast forward to the 21st century, and these politically biased decisions, all of them championing  Republican goals, kept piling up to the point where they could no longer be considered anomalies but something far more insidious. It’s no longer possible to accept, for example, that decisions like Bush v. Gore, Citizens United, and Shelby, issued by justices appointed by Republican presidents, were grounded in anything but an imperative to advance a radically conservative vision for the country.

It’s depressingly apropos that the century began with one of these abominations, since the selection of George W. Bush and the conservative takeover of the Supreme Court was vital to perpetuate this continued subordination of the law.

Of course, it was the election of Donald Trump, his appointment of three radically conservative Supreme Court Justices, and the complicity of the Republican Senate in confirming his other 231 Article III judicial appointments that really supercharged this effort with stark and obvious consequences. The Dobbs decision overruling Roe v. Wade is simply the most recent and dramatic product of this ongoing perversion of justice, overturning an established constitutional right that had stood for half a century, all to satisfy the religious sensibilities of the radical right.

But Trump did more damage than simply appointing some of the most unqualified judges in modern history. His insouciant disregard of any personal accountability for his behavior has inspired conservative jurists to act out in a more nakedly partisan, arrogant fashion, no longer feeling any constraints on expressing their biases. Some have now begun to parade those biases proudly in front of the rest of the country, enjoying the lifelong appointments that have made them effectively unaccountable to anyone. The political right sees this as its moment, and it clearly intends to proceed whether the majority of Americans agree with it or not.

As a direct result of conservatives on the Supreme Court attaining a now unassailable majority, more and more decisions and rulings from these right-wing judges are blatantly political in nature. The judges writing them, secure in their power, have abandoned their role as neutral arbiters. The staggering corruption and appalling bias we are now witnessing simply confirms that this conservative rot, which began decades ago, has now reached an inflection point. 

So it’s important that Americans appreciate what Biden has done. He has nominated judges not simply to correspond to the racial demographics in this country, and not simply to give more deference and representation to women, though he’s done both of these things. More importantly, he is appointing jurists whose vocation is to simply apply the law fairly, not in the service of some radical dogma they feel they must adhere to.

Put simply, Biden is appointing judges who are doing their jobs. And that’s a very, very good thing.

We're heading across the pond for this week's episode of "The Downballot" after the UK just announced it would hold snap elections—on July 4, no less. Co-host David Beard gives us Yanks a full run-down, including how the elections will work, what the polls are predicting, and what Labour plans to do if it finally ends 14 years of Conservative rule. We also take detours into Scotland and Rwanda (believe it or not) and bear down on a small far-right party that could cost the Tories dearly.

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