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With Biden in White House, progressives see chance to rebalance courts

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Washington — Following President Trump's legacy-defining imprint on the federal judiciary, President-elect Joe Biden will now have his chance to make his mark on the courts, appointing what progressives hope are liberal judges with a diverse array of professional experience.

The path for Mr. Biden to reshape the federal courts of appeals will, at first, run through prospective retirements of at least three dozen judges appointed by his Democratic predecessors. But complicating those efforts, and attempts to fill federal district court vacancies, could be the very body where the president-elect served for 36 years, as experts predict a GOP-controlled Senate would stymie attempts by Mr. Biden to appoint liberal jurists.

"To rebalance the courts after years of damage by Trump and McConnell, President-elect Biden will need to fight for younger, diverse lawyers who have spent their careers working for workers' rights, civil rights, and criminal defendants' rights," said Chris Kang, co-founder and chief counsel for Demand Justice, a progressive judicial group. "Picking bold champions for justice is the best way to repair trust in our broken judiciary and to bring progressives into the fight."

In his nearly four years in office, Mr. Trump reshaped the U.S. Supreme Court and the federal judiciary, naming three justices to the high court, cementing its 6-3 conservative majority, and appointing more than 225 judges to the lower courts. 

As of Thursday, there were just 58 vacancies on the U.S. circuit courts and district courts, though nominees are pending for 35 of those open seats. And with Senate Majority Leader Mitch McConnell's unwavering focus on judges, it's likely many of these nominees will be confirmed before the start of the next Congress, despite the unprecedented nature of the Senate approving judges nominated by an outgoing president during the lame-duck session.

Still, that doesn't foreclose Mr. Biden from having the opportunity to put his stamp on the federal bench, as experts expect older judges appointed by Democratic presidents to begin to step down once the president-elect takes the oath of office. 

Russell Wheeler, a visiting fellow at the Brookings Institution who studies judicial appointments, estimates that there are 38 judges on the circuit courts who were nominated by Democratic presidents and will be eligible to take what's called senior status, a form of semi-retirement which allows judges to maintain a decreased workload, by the inauguration. 

The circuit court with the highest number of potential vacancies is the 9th U.S. Circuit Court of Appeals, which, with 10 Trump-appointed judges, has moved closer to parity under Mr. Trump's presidency. But there are nine judges on the 9th Circuit tapped by President Bill Clinton and able to step down once Mr. Biden takes office.

Like the 9th Circuit, the 2nd U.S. Circuit Court of Appeals also shifted to the right under the Trump administration, as the president named five judges to the New York-based court. Four Democrat-appointed judges will be eligible for senior status as of Mr. Biden's swearing-in, Wheeler found.

Though he has yet to formally take office, Mr. Biden has committed to selecting Cabinet members, appointees and judges who "look like America." The president-elect promised during the campaign to nominate the first Black woman to the Supreme Court, but fulfilling that pledge hinges on whether there is a vacancy. Justice Stephen Breyer, nominated by President Clinton, is the oldest member of the high court's three-member liberal bloc at 82.

Progressives are hoping the diversity promised by Mr. Biden also extends to nominees' legal backgrounds and are pushing the incoming president to consider nominees who were public defenders, public interest lawyers and progressive legal scholars.

Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights and former head of the Department of Justice's Civil Rights Division, said that in addition to racial, ethnic and gender diversity, professional diversity is crucial, as those experiences shape how judges view and understand the problems before them.

"It's making sure that the pool of nominees is not exclusively prosecutors and law firm partners, but that there's a broader set," she told CBS News. "Folks ... that are a broader legal part of the legal profession that is not exclusively concentrated at firms and in prosecutors' offices, and that's a broad gamut of people that need to be represented and in the judiciary."

The leeway Mr. Biden has in naming progressive judges, however, likely won't be determined until January 5, when Georgia will hold two runoff elections that will decide which party controls the Senate. If Democrats Jon Ossoff and Raphael Warnock defeat GOP incumbent Senators David Perdue and Kelly Loeffler, respectively, the Senate would split 50-50, leaving Vice President-elect Kamala Harris as the tie-breaking vote.

But if Republicans maintain control of the Senate, Mr. Biden's supporters are bracing for the pace of judicial nominations to slow to a crawl or come to an outright halt.

"A Republican Senate was obstructing a lot of Obama" nominees, Gupta said. "The concern is that that will repeat itself, and the question is whether anything will have changed in a Biden administration. And that's an open question."

In the final two years of President Barack Obama's presidency, when Republicans controlled the Senate, confirmations slumped while vacancies rose, according to Wheeler's research. The decision of the GOP-controlled Senate not to confirm Mr. Obama's nominees left Mr. Trump with a slew of vacancies to fill once he took office.

"I think we're stuck in a situation where unless for some reason Democrats pull off Georgia, I don't think confirmations will stop, but I think they're going to slow down considerably," Wheeler said. "I don't see a deal where McConnell says these courts are starved for judgeships. That could happen. But on the other hand they could paint the White House pink, but I don't think that's going to happen either."

To blunt the impact of Mr. Trump's reshaping of the federal bench, Wheeler said Mr. Biden could push Congress to pass legislation adding judgeships to circuit courts and district courts, which have not been expanded since 1990.

But he said Republicans would likely be unwilling to approve such legislation, and Democrats have not proven eager to expand the federal judiciary either.

Still, leaving vacancies on the federal courts has harmful consequences for litigants, Wheeler said.

"You don't do much for the small business owner in New Jersey who is trying to get their patent case heard," he said.

Clare Hymes contributed to this report.

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