As President Joe Biden launches a new era of judicial appointments, the old guard of the bench is in its twilight.
The judges of the Ronald Reagan era who pioneered the modern conservative revolution in American law are down to just a handful among the 870 total spots on the three-tier federal bench. Those few are still writing some of the most contentious, attention-grabbing opinions, for example to restrict voting, regulate abortion and limit free press.
At the same time, influential liberals of President Bill Clinton’s two terms, those most prominent in countering conservatism, are leaving and making way for Biden nominees. Judges David Tatel, on the influential District of Columbia Circuit, and Robert Katzmann, of the New York-based 2nd Circuit, announced their retirements soon after Biden’s inauguration.
This pattern reflects the enduring impact, along with innately political character, of judicial selection, whether seen in the young firebrands Reagan selected in the 1980s or the broad diversity Biden seeks today.
Of the 11 nominees Democrat Biden unveiled last month, nine are women, including three African American lawyers announced for powerful US appellate courts.
Because federal judges are appointed for life, they can effectively carry out a president’s legacy for decades. And much of a president’s immediate success or failure can turn on the courts. US judges, still resolving challenges to former President Donald Trump’s policy initiatives, are now taking up early lawsuits against Biden’s agenda.
Public attention typically focuses on the nine-justice Supreme Court, which is the ultimate arbiter of the law. But because the justices hear so few cases, the second tier of appellate judges remains the last stop for most cases in America.
While there are no longer any Reagan appointees on the high court, there are still six active Reagan judges on US appellate courts, many known for their robust right-wing views, such as J. Harvie Wilkinson on the Richmond-based 4th Circuit, Frank Easterbrook on the Chicago-based 7th Circuit and Edith Jones, on the New Orleans-based 5th Circuit.
Wilkinson penned a fervent dissent last year in a North Carolina voting rights dispute that was then cited by Supreme Court conservatives opposed to an extended deadline for mail-in ballots.
“Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves,” Wilkinson wrote when the 4th Circuit majority allowed North Carolina to add days to its deadline for absentee voters amid pandemic worries.
The Supreme Court, by a 5-3 vote, let the 4th Circuit majority opinion stand.
Another of the six remaining Reagan appellate judges, Jerry Smith, who sits with Jones on the 5th Circuit, wrote the decision upholding a Louisiana abortion regulation that went all the way to the Supreme Court last June. (The 5th Circuit decision involving June Medical Services was reversed.) Easterbrook in Chicago has also been one of the bench’s most consistent voices to narrowly interpret abortion rights.
One other high-profile Reagan appointee, DC Circuit Appeals Court Judge Laurence Silberman, is semi-retired and not among the remaining six active Reagan judges listed in the Federal Judicial Center database. Even though, Silberman continues to make headlines, as he did in March with a dissenting opinion attacking the news media and urging reversal of the 1964 First Amendment landmark New York Times v. Sullivan that shields the press from lawsuits brought by public figures.
“I readily admit that I have little regard for holdings of the (Supreme) Court that dress up policymaking in constitutional garb,” Silberman wrote.
The Clinton era
Judge Tatel was the author of a decision in the voting rights battle known as Shelby County v. Holder.
As a court broadly upheld the 1965 Voting Rights Act, Tatel highlighted the “second generation barriers” that minority voters still face in certain parts of the country. The Supreme Court reversed that decision in its 2013 ruling that scaled back the Act based on the notion that America’s racial divisions have faded.
Tatel and Katzmann, only two of several Clinton judges who have signaled imminent retirement, also happened to have authored the appellate decisions involving subpoenas for Trump documents. Their respective circuit court majorities upheld the subpoenas issued, respectively, by committees of the US House of Representatives and a Manhattan grand jury.
The Supreme Court in July largely affirmed the New York decision and rejected much of the House case, sending both back to lower courts for further proceedings.
Chief Justice John Roberts often speaks of the ideal of judges severing allegiance to the presidents who appoint them. But it is axiomatic that jurists generally seek to leave the bench when a president of their own party has the opportunity to name the successor.
As she was dying last September, Justice Ruth Bader Ginsburg, according to NPR, told her granddaughter, lawyer Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”
Trump nominated Amy Coney Barrett shortly thereafter, and the GOP-controlled Senate confirmed her before Election Day.
What presidents are looking for
Reagan, who held office from 1981-89, generated a judicial selection process that tapped young conservative thinkers for coveted appeals court slots. For example, Antonin Scalia, a University of Chicago law professor, was appointed to the DC Circuit in 1982 then elevated to the Supreme Court in 1986.
In addition to a total four Supreme Court appointments, Reagan placed 83 judges on appellate courts, a number no president since then has equaled.
Republican presidents have tried to adopt the Reagan team’s ideologically focused approach, and former President Trump had remarkable success, aided by While House counsel Don McGahn, controlling the screening of candidates, and then-Majority Leader Mitch McConnell, speeding the Trump selections through the Senate.
In his single term, Trump was able to appoint 54 appellate judges, just one fewer than Obama’s appeals court total for two terms, 55 judges. Obama’s judicial efforts were regularly stalled by McConnell, who ensured that when Trump came into office in January 2017, about 100 vacancies existed across the judiciary.
In contrast to the Trump choices that were overwhelmingly white men, Biden has made diversity a priority, exemplified by his first three appellate court nominations: Ketanji Brown Jackson to the DC Circuit; Candace Jackson-Akiwumi to the Chicago-based 7th Circuit, and Tiffany Cunningham to the Federal Circuit, which hears intellectual property disputes.
All three are African American women with Ivy League credentials and diverse experience.
Jackson, 50, currently serves as a trial judge on a US district court in Washington. Former President Obama, who had appointed Jackson to that post, considered her among several candidates in early 2016 for the Supreme Court vacancy caused by that February’s death of Scalia.
(Obama eventually chose DC Circuit Judge Merrick Garland, who was then blocked by Majority Leader McConnell from any Senate consideration. Biden named Garland attorney general.)
Before appointment to the bench, Jackson served as a vice chair on the US Sentencing Commission and worked in the Federal Public Defender office. A Harvard law graduate, she served as a law clerk in the 1999-2000 session to Justice Stephen Breyer, the member of the Supreme Court most likely to retire soon.
The 82-year-old Breyer, a 1994 Clinton appointee, has declined to comment on any retirement plans.
On deck for the 7th Circuit, Jackson-Akiwumi, 41, worked for a decade as a staff attorney at the Federal Defender Program in the northern district of Illinois before becoming a partner at a law firm in Washington. She holds a Yale law degree.
Nominated to the Federal Circuit, Cunningham, 44, currently specializes in patent litigation in Chicago. She holds a Harvard law degree.
These three candidates would join a small band of pathbreakers, as there currently are only four Black women actively serving as appeals court judges, according to the Federal Judicial Center. All are in their late 60s or older.
During the presidential campaign, Biden made a single vow related to any appointment for the Supreme Court. During a February 2020 debate in Charleston, South Carolina, he said: “I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.”