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How Biden's judicial record could affect the country's courts

MICHEL MARTIN, HOST:

President Biden has appointed a record number of judges to the federal bench so far, more than any other president has at this point in their tenure since John F Kennedy. And most of those positions have been filled by women and people of color, that according to a recent analysis by the Pew Research Center.

We wanted to know how Biden's efforts could affect the country's courts, especially following the long campaign by Republican activists and presidents to reshape the judiciary. To do that, we called David Lat. He is a lawyer and former federal prosecutor, as well as the author of Original Jurisdiction. That's a newsletter about the law and legal affairs. And he's with us now.

Mr. Lat, welcome. Thank you for joining us.

DAVID LAT: Thank you so much for having me, Michel.

MARTIN: So just to put this into context, 75 of Biden's appointees have been confirmed. The administration announced another round of nominees over the Labor Day holiday. That's a fast pace. But the former President Trump appointed more than 200 federal judges, and he made good on his campaign promise to be guided in his selections by the conservative Federalist Society, which has a well-known commitment to certain conservative judicial philosophies. Does the Biden administration have a similar advisory body helping to make these selections? Or what is its strategy?

LAT: So the Biden administration doesn't have an organization quite as influential as the Federalist Society. There is the American Constitution Society, but ACS does not have the kind of sway and connections that the much older and more well-funded Federalist Society has. So what the Biden administration has been doing, which I think is very smart, is they have been looking for lawyers in areas of law which are good proxies for people who are liberal or progressive, which is why President Biden has appointed a record number of public defenders and civil rights lawyers and labor-side labor lawyers who represent employees, not employers. And so I think that's how the administration has been going about finding judges who ideologically can counterbalance the Trump judges.

MARTIN: I think it's important that you pointed that out, because as we as we mentioned earlier, according to the Pew Research Center, about 75% of President Biden's picks so far have been women, and about two-thirds have been people of color. But I do think it's important to point out that being of a certain identity doesn't guarantee your judicial philosophy. Do these judges that he's choosing - do you think that they will change the courts? And if so, how?

LAT: Absolutely. I do think that President Biden's nominees are going to end up being the most liberal or progressive nominees since those of President Carter. And that's partly because Presidents Obama and Clinton were fairly moderate or middle-of-the-road in their nominations and appointments. One difference between President Biden and his predecessors is that we got rid of the filibuster for judicial nominees. In the past, to get over the filibuster in the Senate, you needed 60 senators to vote for the nominee. And so now President Biden has much more free rein to nominate people, as long as he retains those 50 votes in the Senate with Kamala Harris, vice president, breaking ties.

MARTIN: OK. So let's - let me ask two questions about that, and I'll take them sort of separately. First of all, as we said, federal judges are not bound by term limits, even though President Biden has had a fast pace in approving judges. The reality of it is, as we said, that the former president appointed more than 200 federal judges. And so is it possible for the Biden administration to rebalance the courts?

LAT: I think that will be tough. I think it will be hard to get to Trump's 234 or something like that judges because remember, Trump during his entire four-year term, had a very cooperative Republican Senate led by Mitch McConnell. Right now, President Biden has a very, very slim majority. If Senator Manchin wakes up on the wrong side of the bed, then that nominee might not go through - or Senator Sinema. And so it's going to be tough.

The second thing I would point out that gave Trump an advantage is Republicans in the last two years of Obama's term really held up confirmations, which meant that when Trump arrived, he had a huge number of positions to fill. Biden didn't have that advantage when he came into office. Only two circuit court or appeals court higher - you know, intermediate court positions were open. But I think just politically, he's going to have a hard time getting there.

MARTIN: How would you describe the legacy that President Biden will have when it comes to the judiciary, since he is clearly himself a moderate by temperament, but he's also clearly making an effort to, you know, open the judiciary to kind of a broader range of people of life experiences, shall we say. What - how would you describe it, just with the evidence we have so far?

LAT: It's a little bit hard to say because we're not even two years into his term and a lot of his judges haven't built up records. But I do think that, one, judges will be one of President Biden's most important legacies. He's a lawyer himself. He's had really smart lawyers like White House Chief of Staff Ron Klain and former White House counsel Dana Remus advising him. He's clearly made it a priority to put strong judges on the bench. So I think that, one, this is going to be a very important part of his legacy. And then I think as a second point, I would say that the Biden nominees are more progressive than their counterparts, again, partly because they don't have to deal with the filibuster.

The other thing I'll point out is the Biden nominees, like the Trump nominees, are much younger than the nominees of past presidents. The average age of a Biden nominee is something like 48 or so. That's about eight years younger than an Obama nominee. And the thing about this is, as you noted, Michel, because there's no life - because there's no term limits, life tenure, young judges can serve for decades and exert a much greater influence on the direction of the law. So even though I don't think Biden will be able to get to 230-something judges like Trump, I think his appointments will be an important part of his legacy, and I think they will shape the law for years to come.

MARTIN: David Lat is a lawyer, former federal prosecutor and the author of Original Jurisdiction. That's a newsletter about the law and legal affairs. David Lat, thanks so much for speaking with us today and sharing this expertise with us.

LAT: Thanks for having me. It was a pleasure. Transcript provided by NPR, Copyright NPR.

Michel Martin is the weekend host of All Things Considered, where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.