Biden Prioritizing Identity Politics Over Experience in Choosing Federal Judges

February 24, 2023
Biden Radical Nominees | First Liberty Institute

by Jorge Gomez • 5 min read

The Senate has confirmed a total of 105 Biden nominees to the federal judiciary, exceeding the number of judges confirmed by George W. Bush, Barack Obama and Donald Trump. The President and leaders of his party have touted this rapid pace as “historic,” and have vowed to continue making judicial confirmations a priority.

But as First Liberty’s legal experts recently explained, Biden’s confirmations so far don’t necessarily mean he’s going to have the same impact on the judiciary as his predecessor. He faces an uphill battle if he wants to surpass the more than 230 judges confirmed under the Trump administration. That’s mainly because he has dozens less vacancies available to fill. The Brookings Institution published a thorough report breaking down the numbers and concluded:

“Biden was quick off the block in his first-year appointments and slowed somewhat in his second year. To achieve record numbers of confirmations in four years he will need some luck in the form of a vacancy influx and more, or at least more successful negotiations with home-state Republican senators over district nominees.”

The numbers, of course, only tell one part of the story. More than the quantity, the quality of Biden’s nominees is raising serious concerns.

The administration has emphasized its efforts to prioritize identity politics on the federal bench. A White House statement recently noted it has made important progress to make sure the federal judiciary “looks more like the nation as a whole.” Senate Democrats also issued a statement saying they “made history by confirming more people of color to Circuit Courts than any previous president did in an entire term.”

But the Biden administration being more focused on playing identity politics than with the records, qualifications and legal philosophies of judicial nominees could be detrimental, judicial experts warn.

This became evident during a Senate Judiciary Committee hearing when one of Biden’s district court picks couldn’t answer basic questions about the Constitution. The nominee couldn’t recall what Article II and Article V said.

Thomas Jipping, Senior Legal Fellow at the Heritage Foundation, explained that “the most important factor in appointing judges should be the kind of judge a nominee will be, how he or she understands the power and proper role of the judiciary, not the race or sexual orientation.” He added:

“The Biden administration is pushing people to think of the judiciary as a ‘representative’ branch of government, which is the opposite of the impartial, independent judiciary that has been so important and distinctive in America. It encourages people to believe that cases are decided by judges and their personal views rather than the law. It politicizes people’s expectations.” 

On the Senate floor, Sen. Mitch McConnell of Kentucky recently pointed out the difference between the Biden’s judges and those confirmed under the Trump presidency. He noted that “significantly smaller shares of this President’s nominees have attained prestigious clerkships at the Supreme Court or appellate level.” He also referenced an article from the liberal outlet, which reported: “Based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”

Horace Cooper—Senior Fellow at the National Center for Public Policy Research—told Tucker Carlson in an interview:

“What we’re seeing from the Biden Administration, and generally from the progressive movement, is this idea that we just need to reshape the judiciary, in a way, under ‘color’ (I use that term in a duplicative way) by pretending that we’re making the courts look more like America. But the truth of the matter is, we’re finding people, they aren’t talented, they aren’t highly skilled, but they know progressive vision just like the back of their hand. That’s the ultimate goal of what’s happening here. Not excellence. And America suffers, corporations suffer, defendants suffer.”

Sen. McConnell pointed out in his speech: “Our courts uphold the rule of law and protect our citizens’ rights. The American people deserve a judiciary that contains the smartest, most formidable, most qualified legal all-stars in the country.” He is correct.

Federal judges make critical legal decisions not only about religious freedom, but also on many of our cherished constitutional rights. Deciding who will be on our federal courts for life should be, first and foremost, about their record, experience and the legal philosophy. At a time when religious Americans confront increasing threats to their freedoms, we need excellent judges committed the Constitution and the rule of law—who will rule according to principle and not politics.


President Biden Names Thirtieth Round of Judicial Nominees

The White House reports: The President is announcing his intent to nominate two individuals to federal district courts and one individual to the United States Court of Federal Claims. This round brings the total the number of announced federal judicial nominees to 157.

Biden Admin Under Fire for Pursuing Diversity Over Merit: They’re Finding People ‘Who Aren’t Highly-Skilled’

Fox News reports: Biden has nominated record numbers of women and people of color to the federal judiciary. But critics are calling out the administration out for its seemingly race-based confirmations, arguing it is trying to replace excellence and merit with diversity.

First Circuit Nominee Excoriated at Hearing

National Review reports: A recent Senate Judiciary Committee hearing did not go well for Michael Delaney, President Biden’s nominee to the U.S. Court of Appeals for the First Circuit. Delaney was repeatedly pressed by Republican senators over his role in pushing to publicly name an underage female victim of sexual assault while representing a prep school in Concord, New Hampshire, in a case he litigated.

Senator Mike Lee said: “I’m not aware of any courtroom in America where a child victim—whether still a minor at the time of the trial proceedings or not—where the victim wouldn’t be allowed freely to choose to protect her anonymity.”

How Can We Measure the Influence of President Biden’s Court of Appeals Judges?

Derek T. Muller, Professor of Law, University of Iowa College of Law, writes in his blog, Excess of Democracy: Recent media reports have been discussing President Joe Biden’s influence on the federal judiciary, including the rapid pace of nominating and ensuring confirmation of federal judges. And it’s been something of a proxy for “influence “ or “impact.” It’s true that more judges participating in argument and voting in panels, particularly judges on the federal courts of appeals, is one way of measuring influence.

But another way to measure influence could be to examine written appellate opinions. And it appears President Biden’s court of appeals judges are publishing opinions (at least, in their names) less frequently than other recent judges.

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