With public defenders as judges, Biden quietly makes history on the courts

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WASHINGTON — While President Joe Biden's economic agenda is mired in Democratic infighting, the Senate is quietly making history with his judicial nominees.

The Democratic-controlled Senate voted 52-41 Monday to confirm Gustavo Gelpi to be a judge on the 1st U.S. Circuit Court of Appeals, based in Boston, making him the fifth new circuit judge with a background as a public defender on Biden's watch.

Set against recent history, that is a remarkable statistic. President Barack Obama confirmed five former public defenders to the appeals courts over his entire eight years, according to the progressive judicial group Demand Justice. Biden has matched that in his first nine months.

Overall, Gelpi is Biden's eighth new judge with experience as a public defender. That is as many as presidents Donald Trump, Obama, George W. Bush and Bill Clinton landed in their first years combined, said Chris Kang, the chief counsel of Demand Justice.

"It really is amazing how far Biden has shifted the paradigm," Kang said. "This is going to be an important part of his legacy."

With the latest confirmation, Biden is outpacing every other president since Richard Nixon in confirming circuit judges, who have the last word in most federal cases — although the pace will be difficult to maintain.

One of his new appellate judges is Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia, a former public defender who is widely seen by people close to Biden as a future Supreme Court contender.

Progressives have lamented the long-standing tendency of presidents in both parties to prioritize corporate lawyers and prosecutors for federal judgeships, arguing that the lack of diversity in experience on the courts has created blind spots in the justice system.

Kang, who worked on judicial selection in the Obama White House, recalled having to grapple with criticism Obama got for a lack of professional diversity among his nominees.

Biden's White House counsel, Dana Remus, has sought to correct that early by making it clear that Biden intends to change course and nominate more public defenders and civil rights lawyers.

Senate Majority Leader Chuck Schumer, D-N.Y., has put a high priority on judicial nominations, and he has kept the chamber's 50 Democratic-voting members on board to push through Biden's judges, sometimes without any Republican votes. While he has struggled to advance major parts of Biden's agenda that are subject to the filibuster, judicial nominees are exempt from the 60-vote rule.

Overall, Gelpi is Biden's 17th confirmed judge under Article III of the Constitution — six on appeals courts and 11 on district courts. The next nominee, Christine O'Hearn, the selection to be a district judge in New Jersey, is expected to get a final vote Tuesday. Dozens more nominees await votes.

Some conservatives are raising alarms about Biden's impact on the courts.

Carrie Severino, the president of the right-leaning Judicial Crisis Network, said liberal groups that spent "millions of dollars to help elect Joe Biden have become quite vocal in demanding judicial nominees who will help promote their liberal policy aims from the bench, and he has shown a willingness to do whatever he can to appease those groups."

When he was the majority leader, Senate Minority Leader Mitch McConnell, R-Ky., used aggressive tactics to push through a remarkable 234 judges in Trump's four years. They included three to the Supreme Court, cementing a 6-3 conservative majority that is poised to hear major cases soon about abortion rights and gun laws.

That has lit a fire under the progressive movement.

"Democrats are all taking the courts so much more seriously, and with greater urgency, than ever before," Kang said. "This is a reflection of President Biden and Vice President Harris and [White House chief of staff] Ron Klain's focus on the courts."

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