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WASHINGTON – President Joe Biden and Senate Democrats are scrutinizing civil rights lawyers and public defenders to appoint judges, embarking on a mission to shape the courts after Republicans have revised them for the past four years, according to senior party officials and activists.
Democrats have a very slim majority in the Senate which gives them control over nominations. They estimate they have two years to make their mark and fill a growing number of vacancies ahead of a midterm election where the ruling party has historically lost seats.
Some are preparing for a retirement to the Supreme Court as early as this summer, with most speculation centered on Justice Stephen Breyer, 82, appointed Democrat.
In addition to forming a new commission to study structural changes in the justice system, White House Biden has asked senators to recruit civil rights lawyers and defense attorneys for judge positions. Officials working on the matter say they have seen a surge of interest and have started hosting sessions to offer information and advice on navigating the Confirmation Glove.
“We’ll see proof of that in President Biden’s first round of nominees. I expect them to be very different from the kind of judges Democratic presidents have proposed in the past, ”said Chris Kang, co-founder of the progressive group Demand Justice and former White House deputy attorney at Obama. “Their backgrounds will be drastically different, overall, and that will make a huge difference in our courts.”
For decades, Republicans have prioritized the courts in elections to stir up their base. Democrats virtually ignored the issue during the election campaign and are now catching up after their constituents watched in horror as former President Donald Trump and Republicans fill more than a quarter of U.S. justice with mostly young conservatives.
Senate Democrats are considering what procedural tools to use to ensure success – some are calling for the elimination of the “blue slip” courtesy that gives senators a veto over judicial candidates who would serve in their states. Republicans shut it down to circuit judges, and now Democrats are considering extending that to district candidates.
Many Democrats remain furious at Republican Senate Leader Mitch McConnell’s refusal to let them take a Supreme Court post months before the 2016 election, an extraordinary move he followed by upholding Conservative justice the week before the 2020 elections.
“I call it fixing the courts,” said Sen. Sheldon Whitehouse, DR.I., a senior member of the Judiciary Committee, in an interview. “We need to make sure that we fill the vacancies with credible, neutral and fair judges, rather than with the political agents that we have seen so much in the Trump years.”
“The prospect that we won’t always have a Democratic president and a Democratic majority in the Senate should motivate us to act with real diligence this time around,” Whitehouse said, calling it a “very cautious goal” to fill every position. to the bench by the end of 2022.
He urged fellow Democrats to ignore “Republican rules of procedure” on issues like blue cards after tactics used to tip the courts to the right.
A Democratic aide who works on nominations said the Senate’s priority over judges will be to fill vacancies in district courts in the blue states. The aide said Democrats “will wait and see” whether Republicans deal in good faith with the number of vacancies in the Red State before deciding whether to go ahead and fill them.
Fill every judicial vacancy?
There are already around four dozen vacancies in federal district courts and a handful in circuit courts. That number will undoubtedly increase as more judges retire and if Attorney General’s nominee Merrick Garland is confirmed, forcing him out of his DC Circuit seat.
“We have many vacancies that we would like to fill. We want to do it in an orderly and sensible manner, ”new Senate Judicial Chairman Dick Durbin, D-Ill, told NBC News.
Even if the Senate is split 50-50, under the power-sharing deal leaders are likely to approve, if all Democrats stay united they can approve judges without any Republican support.
With Democrats focusing on confirming Biden’s cabinet and advancing his Covid relief program, some people involved in the court process say they expect the first batch of court appointments to arrive in the spring.
White House attorney Dana Remus told senators in a recent letter to recommend candidates for vacant district court positions within 45 days of a vacancy, so they can be “promptly” considered .
“With respect to United States District Court positions, our particular focus is on appointing individuals whose legal backgrounds have been historically under-represented on the federal bench, including public defenders, lawyers for civil rights and legal aid, and those who represent Americans at every stage of life, ”Remus wrote in the letter, which was obtained by NBC News.
This means fewer prosecutors and “great corporate lawyers,” who Whitehouse says tend to have a “high-speed route” to justice. He said lawyers for the plaintiff would get groups like the Chamber of Commerce turned down, but praised Biden for his pursuit of “professional diversity” as well as demographic diversity.
Remus’ letter “really started a fire” under the Senate, the Democratic aide said, adding that regular conversations were taking place between the Senators and the White House.
Republicans, aided by a well-funded network of conservative groups, hope to fight the Democratic effort to shape the justice system. Iowa Senator Chuck Grassley is set to become a leading member of the Judiciary Committee, serving as the party’s front line defense against Biden’s candidates.
But the GOP will have to choose its battles.
“There is always deference to a president,” Grassley said in an interview, promising not to approach the issue “any differently from what I have done in the past.”
The slim Democratic majority means that the more aggressive ideas the progressives had pushed for – including the addition of four Supreme Court seats – are probably going nowhere.
Biden has launched a commission he promised on the election track that will look at the structure of the courts and recommend changes. It will be co-chaired by Bob Bauer (who was one of Biden’s top lawyers during the election) and Cristina Rodriguez (Yale law professor and former Justice Department lawyer), according to an administrative source familiar with the plans for Biden.
The commission will include a “wide range of expert opinions” and public testimony, said the administrative source, who said the recruitment of commissioners has “progressed considerably” but is not finished. The source added that the focus will be on the lower courts – not just the Supreme Court.
A White House official said Biden “remains committed to an expert study of the role and debate on court reform and will have more to say in the weeks to come.”
Senate Majority Leader Chuck Schumer, DN.Y., has not taken a position on the Supreme Court expansion, saying he will wait to see what Biden’s commission comes up with. But he said lower courts should get new seats, arguing that a part of his state, like Buffalo, “doesn’t have enough” judges.
He told MSNBC’s Rachel Maddow in an interview Tuesday that Democrats “can take a lot” of seats.
“There will be a lot of vacancies that come up. And I think there are a lot of judges – Democrats appointees who didn’t take leadership status while Trump was president who will now, ”Schumer said. “Then we can fill it.”
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