The first Senate hearing for President Joe Biden’s judicial nominations featured two African American nominees for appeals court openings, giving Democrats an early chance to promote racial diversity on the bench and provide a contrast to the Trump era, when no Blacks were among the 54 such judges confirmed.
The Biden nominees said Wednesday they did not believe race would play a role in their decisions, though they said diversity helps increase confidence in the courts.
“Over the course of the prior administration, our federal judiciary became markedly less diverse," said Sen. Alex Padilla, D-Calif., a member of the Senate Judiciary Committee. “Today marks an important step in reversing that trajectory and creating a federal judiciary that reflects the America that it serves."
Democrats, narrowly controlling the Senate for the first time in eight years, are eager to turn the page from the Trump administration, especially when it comes to judges. More than one-quarter of the federal judiciary is made up of President Donald Trump appointees. Most notably, he nominated three members of the Supreme Court: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Iowa Sen. Charles Grassley, the committee's top Republican, harkened back to the Barrett confirmation in setting the tone of GOP senators. He noted that Democrats warned that Barrett’s confirmation was designed to ensure Trump’s reelection and to get rid of the Affordable Care Act, the Obama-era health law.
“Well, I just checked. Joe Biden is president of the United States and ‘Obamacare’ is still on the books,” Grassley said. “If my friends don’t want to apologize to Justice Barrett publicly, she’s right next door and I’ll bet she’d be happy to accept any apologies in person.”
The committee heard from five nominees on Wednesday, with Ketanji Brown Jackson attracting most of the attention.
She is a federal judge in the District of Columbia, and Biden wants her promoted to the appeals court seat left vacant when Merrick Garland became Biden's attorney general. Biden has promised to name a Black woman to the Supreme Court if a vacancy arises and Jackson is widely seen as a potential pick down the line.
Sen. John Cornyn, R-Texas, said that because Democrats were placing so much emphasis on race, he wanted to know what role it would play in judicial decisions.
“I don't think race plays a role in the kind of judge that I have been and that I would be, in the way that you asked that question" Jackson said. She added: “I'm methodically and intentionally setting aside personal views, any other inappropriate considerations, and I would think race would be the kind of thing that would be inappropriate to inject in my evaluation of a case."
Cornyn also tried to get her to weigh in on the debate about expanding the Supreme Court, an idea being pushed by some Democratic lawmakers. Biden this month created a commission charged with examining the politically incendiary issues of expanding the court and instituting term limits for justices, among other topics.
“Do you think the Supreme Court is broken?" the senator asked.
“I've never said anything about the Supreme Court being broken, and again, you know, I'm not able to comment on the structure, the size, the functioning even of the Supreme Court," Jackson said.
Jackson had gone before the committee in 2012 for her current job. Introducing her was then-Rep. Paul Ryan, R-Wis., who later became House speaker and is related to her by marriage. “Now, our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, it is unequivocal,” Ryan said at the time.
As for whether there might be a Supreme Court opening in the near future, Justice Stephen Breyer, 82, the court’s oldest member, has been mum about any retirement plans. The last he had to say on the topic, in an interview published in December, was: “I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when.”
Liberal groups have urged the court's most senior liberal justice to step down while Democrats have Vice President Kamala Harris to break a confirmation vote tie in a Senate split 50-50. And it's getting to be the time of year when justices often announce their retirements.
If Breyer were to retire this year or next and Biden were to select Jackson to replace him, it would be a quick potential promotion, but also not out of step with other members of the court.
President George H.W. Bush nominated Clarence Thomas to the Supreme Court in 1991, just a year after putting him on the U.S. Appeals Court for the District of Columbia Circuit. Last fall, Trump nominated Barrett to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg. It was just three years after he put the Notre Dame law professor on an appeals court.
Also being considered for the appeals court was Candace Jackson-Akiwumi, 41, a Washington attorney. She previously served as a federal public defender in Chicago. Democratic lawmakers embraced her work as a public defender, saying such experience is too scarce in today's federal judiciary.
Jackson-Akiwumi said she too believed that race wouldn't play a role in the type of judge that she would be.
“I do believe that demographic diversity of all types, even beyond race, plays an important role in increasing public confidence in our courts and increases the public's ability to accept the legitimacy of court decisions," she said.
Three other Biden nominees who testified were: Julien Xavier Neals, who is Black and is county counsel for New Jersey's Bergen County; U.S. Magistrate Judge Zahid N. Quraishi, who is Muslim and of Pakistani ancestry; and Regina M. Rodriguez, who is Hispanic and is a Denver lawyer.