Biden is boldly reshaping the federal judiciary

He's making the courts look more like America. But that's not all.

Nancy Abudu during her confirmation hearing last month. (Tom Williams/CQ-Roll Call via Getty)

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Last week, the Senate confirmed Nancy Abudu to serve on the US Court of Appeals for the Eleventh Circuit. She will be the first Black woman to serve on the Eleventh Circuit since its creation 42 years ago. Her background in protecting voting rights is more critical than ever as conservative states seek to undermine access to the ballot box.  

Until the Trump era, the nomination of lower court judges was a sleepier affair. Presidents nominate judges to the lower federal courts, which cover a state or part of a state, and federal courts of appeal, which cover multiple states (save for the DC Circuit, which covers only DC). Until the Trump era, these nominations, which are lifetime appointments, were relatively sleepy affairs. Most people would be hard-pressed to name, say, President Obama’s appointee to the US District Court for the Western District of Kentucky. 

But Trump changed all that. Where Obama’s nominee to that Kentucky court, David Hale, spent 20 years in private practice and four years as the US Attorney for Kentucky before Obama named him to the bench, Trump’s nominee to the same court, Justin Walker, had graduated from law school less than ten years previously and had never tried a case. Nor had he practiced law at a private law firm, or worked in public service as a prosecutor or public defender. But Walker did have one thing going for him, in Trump’s eyes: he had been one of Brett Kavanaugh’s most vocal champions during his confirmation hearings, doing dozens of media hits slamming Christine Blasey Ford, who had accused Kavanaugh of sexual assault. To Trump, that kind of fealty more than made up for Walker’s thin resume.

During his term, Trump stacked the federal courts with underqualified hyper-conservative types like Walker and other enthusiastic members of The Federalist Society, a group for conservative lawyers founded by Leonard Leo, who has pumped tens of millions of dollars into the successful right-wing capture of the courts. 

President Joe Biden has been digging the courts out of that hole, with 129 nominees confirmed thus far in his presidency. Biden’s picks aren’t just about filling vacancies; they’re also about diversifying the federal bench. Where Trump’s appointees were almost 90 percent white and nearly 80 percent male, over 75 percent of Biden’s nominees confirmed by the Senate are women, and over two-thirds are non-white. And Republicans like Rep. Glenn Grothman of Wisconsin are big mad about it.

Biden’s push for diversity isn’t limited to ensuring that more women and people of color are on the federal courts, though that is critical. He’s also been nominating attorneys who don’t come from the traditional backgrounds that usually land people on federal courts. 

Biden is diversifying the courts in ways that go beyond race

Recent presidents — both Democrat and Republicans — have overwhelmingly appointed attorneys who favor government and big business. For example, before Biden’s appointees began to level the playing field, there were four former prosecutors for every former public defender on the federal bench. 

High-priced attorneys from fancy firms are also overrepresented. This problem pre-dated Trump, with Bill Clinton, Obama, and George W. Bush drawing between 16 and 25 percent of nominees from private firms. That number increased dramatically under Trump. In fact, by November of 2018, Trump had nominated 11 attorneys from just one firm — Jones Day. Don McGahn, the architect of Trump’s judicial nomination process, worked at Jones Day both before and after his time in the administration. Jones Day also represented Trump’s campaign in both 2016 and 2020.

Biden had his work cut out for him if he wanted to alter the composition of the federal courts, which he said, for too long, “haven’t looked like America.” His Supreme Court appointee Kentanji Brown Jackson, who served as a public defender before becoming a judge, is an excellent example of Biden’s goal of creating courts that look like America.

Biden and Ketanji Brown Jackson embrace at an April 2022 White House event celebrating her confirmation to SCOTUS. (Jim Watson/AFP via Getty)

 Abudu helps Biden achieve his goal of diversifying the courts. However, she isn’t notable merely for being the first Black woman to sit on the 11th Circuit, a court that covers Alabama, Florida, and Georgia, where 8.5 million Black people live. She also has a lengthy background in voting rights, having worked at the ACLU’s Voting Rights Project for 14 years before joining the Southern Poverty Law Center (SPLC) in 2019 and helping create their voting rights practice group. 

In that role, Abudu represented individuals with felony convictions in Florida, arguing that the state’s requirement that people pay all fines and fees before having their voting rights restored disenfranchised those citizens. In 2020, she sued Alabama, seeking to have the state relax some of its more onerous voting restrictions, such as requiring absentee voters to have their ballot notarized and banning curbside voting during the covid-19 pandemic. The following year, Abudu represented civil rights groups that sued the state of Georgia over its omnibus bill stuffed full of voter suppression tactics, including the state restricting the use of dropboxes and banning people from bringing food and water to Georgians waiting in hours-long lines to vote. 

The future of US democracy hinges on protecting voting rights

Abudu’s perspective is especially needed now, as state legislators in 2023 alone have proposed well over 100 bills seeking to restrict voting. Many seek to roll back access that was expanded during the 2020 election because of covid-19, and others seek to disenfranchise voters Republicans don’t like, such as younger voters and people of color. 

States succeed in this effort because of a 2013 Supreme Court decision, Shelby v. Holder. In that case, the court’s conservative majority threw out a significant portion of the Voting Rights Act. Since 1965, states with a history of racial discrimination have been required to submit proposed voting laws to the Department of Justice for “pre-clearance” for the federal government to determine whether they were racially discriminatory. Shelby ended that practice, and predictably, as Abudu wrote three years ago, states raced to pass restrictive voting laws such as more frequently purging voter rolls and limiting voting by mail. States also passed laws closing over 1,600 polling places between 2012 and 2018, making it harder for voters to get to the ballot box. 

Given the Republican enthusiasm for voter suppression, it isn’t surprising that they opposed Abudu’s nomination, with 18 GOP state attorneys general accusing her of “hateful rhetoric.” Republican senators, who uniformly voted against confirming her, were mad about Abudu’s statement that voter ID laws serve no legitimate government interest. They were also mad at the SPLC for saying several legislators, including Ted Cruz, courted hate and extremism, even though Abudu’s role at the SPLC is limited to voting rights. 

Democratic Sen. Joe Manchin crossed the aisle to vote with the Republicans, saying the Senate shouldn’t confirm “partisan advocates.” What Manchin misses, deliberately or not, is that Abudu’s voting rights efforts are distinctly non-partisan. Abudu’s career shows a commitment to increasing access to voting for everyone, but particularly those who have suffered past discrimination. That shouldn’t be a partisan issue, but given the GOP’s commitment to voter suppression, it is.

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That’s it for today

I’ll be back with more Wednesday. I hope my US readers have a nice Memorial Day. If you’re not yet a paid subscriber to Public Notice, please consider supporting this work by becoming one.

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