In the span of 24 hours, the Supreme Court last week rolled back decades of civil rights progress.
On Thursday, the court’s conservative supermajority ended affirmative action. On Friday, it said anti-LGBTQ+ discrimination was constitutional. And again on Friday, it denied student loan forgiveness to 26 million Americans who signed up for financial help.
It’s a grim moment for anyone who cares about ensuring that there are federal protections for people routinely facing discrimination or economic disadvantages. But there is something else happening in the background that gives reason for hope: Senate Democrats have been rapidly filling federal judgeships with people with backgrounds in civil rights, abortion rights, voting rights and defending people too poor to afford their own lawyers. And some of these new judges are potential contenders for future Supreme Court seats.
The court’s latest decisions, which were all handed down in 6-3 rulings along ideological lines, are precisely the endgame that conservatives have been working toward. For decades, they’ve been laser-focused on reshaping the courts as Democrats dithered. It’s no coincidence that all six of the court’s GOP-appointed justices are members of the ultraconservative legal organization the Federalist Society, or that all were essentially handpicked by the same powerful Federalist Society leader, Leonard Leo, to become Supreme Court justices.
Those six justices were all lower court judges first. That was baked into the plan, too. With Supreme Court seats as the ultimate goal, conservatives have been strategically filling U.S. district and U.S. appeals court seats with anti-LGBTQ, anti-abortion Federalist Society members. When Donald Trump became president, they hit the jackpot: Knowing that Trump could not care less about who got a court seat as long as he got credit for a win, The Federalist Society fed him a pipeline of its favorite judicial picks for his entire four years in the White House. All three of Trump’s Supreme Court nominations, virtually all of his appeals court judges and even some of his district court judges are members of the Federalist Society.
Simply put, conservatives played a wildly successful long game for the courts when progressives didn’t. Democrats have never had an operation like this in place.
But things have shifted in recent years. Progressive judicial advocacy groups like Demand Justice have cropped up and been screaming about the need to level the ideological playing field on the courts. Senate Democrats, perhaps tired of losing all the time, smartened up and now get fired up about the importance of the courts and judicial nominations. Joe Biden, a former longtime chairman of the Senate Judiciary Committee, made judicial nominations a top priority before he was even sworn in as president.
Even now, with the Supreme Court’s conservative majority taking aim at virtually every constituency in the Democratic Party, progressives are coming off a series of major, if little-noticed, victories in the Senate when it comes to fighting back on the courts.
In the last three weeks, Senate Majority Leader Chuck Schumer (D-N.Y.) lined up and confirmed six of Biden’s most trailblazing judicial nominees to date, some of whom are certainly contenders for future Supreme Court seats. All are civil rights attorneys. All have been priorities for progressive judicial advocacy groups. All are relatively young, meaning they likely have decades ahead of them in their lifetime appointments. And all bring badly needed diversity to the federal bench.
There’s Dale Ho, 46, a prominent voting rights attorney with the American Civil Liberties Union. In 2019, he went before the Supreme Court and successfully challenged Trump’s plan to include a citizenship question on the 2020 census. Last month, he was confirmed 50-49 to the U.S. District Court for the Southern District of New York.
The Senate also just confirmed Julie Rikelman, 51, considered one of the best abortion rights attorneys in the country. Rikelman served as the litigation director for the Center for Reproductive Rights since 2011, and most recently, she argued on behalf of the abortion clinic at the center of last year’s Supreme Court case that led to Roe v. Wade being overturned. Two weeks ago, she was confirmed 51-43 to the U.S. Court of Appeals for the First Circuit.
Nusrat Choudhury, a longtime civil rights attorney, was confirmed 50-49 to the U.S. District Court for the Eastern District of New York, despite opposition from Republicans and Democrat Joe Manchin. Choudhury, 47, is now the first Muslim American woman on the federal bench.
Schumer also pushed through the confirmations of Hernán Vera, a former staff attorney at the Mexican American Legal Defense and Educational Fund who now serves on the U.S. District Court for the Central District of California; Casey Pitts, a labor law attorney who is now the only openly LGBTQ+ judge on the U.S. District Court for the Northern District of California; and Natasha Merle, the former deputy director of litigation for NAACP Legal Defense & Educational Fund who now sits on the U.S. District Court for the Eastern District of New York.
This wave of confirmations came just weeks after the Senate confirmed 49-year-old Nancy Abudu, another civil rights attorney and the first Black woman ever confirmed to the U.S. Court of Appeals for the 11th Circuit.
Bringing diversity to the courts matters for so many reasons. Judges of different genders, races and experiential backgrounds reflect the diversity of the millions of people they serve, and bring much more well-rounded judicial decision-making to the federal bench. They help to confine biases that can undercut federal court litigation. Perhaps most importantly at a time like this, when public confidence in the Supreme Court is in the toilet, having a diversity of judges can increase faith in the nation’s courts.
Brian Fallon, executive director of Demand Justice, has been celebrating the significance of the recent batch of confirmations for weeks.
“The last month has seen the Senate confirm some of the most groundbreaking judicial picks of the Biden era,” Fallon said. “We have not seen a commitment like this to elevating civil rights lawyers since the 1970s under [former President Jimmy] Carter.”
“Several of these nominees are candidates for the Supreme Court in the future,” he added, “ensuring that Biden’s imprint with these picks will last for decades to come.”
The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national civil and human rights organizations, also hailed the recent wave of confirmations of civil rights attorneys, declaring on Twitter, “THIS is the kind of judiciary our nation needs & deserves.”
The timing, amid a flurry of notable — and controversial — federal court cases at the Supreme Court, stands out, too. Most of Biden’s recently confirmed judges had been waiting for their votes for months, if not for more than a year, due to stiff GOP opposition and Democratic absences in a Senate where Democrats hold a razor-thin 51-49 majority. Ho’s confirmation had stalled for more than 650 days.
Schumer had to wait for every single Democrat to be in Washington in order to schedule all of these nominees’ votes, or at least have enough Democrats present to outnumber the Republicans present. Sen. Dianne Feinstein (D-Calif.) was out for months battling shingles. Sen. John Fetterman (D-Pa.) was out for weeks getting mental health treatment.
As soon as both returned to the Senate, Schumer wasted no time scheduling Ho’s confirmation vote in early June, only to be temporarily sidelined again by Sen. Patty Murray (D-Wash.), who was absent due to a sinus infection.
The stars finally aligned a few weeks ago.
“Whether public defenders, civil rights, legal aid, election, or voting rights attorneys – we’ve fought for judicial diversity to ensure each potential judge has the background and experiences to build a more fair and equitable America,” Schumer told HuffPost in a statement. “Senate Democrats have worked to make a judicial system that better reflects our country.”
All six of these recently confirmed judges fit into Biden’s broader push to bring badly needed diversity to the federal bench, both in terms of demographics like race or gender and in terms of professional backgrounds. With Schumer’s help in the Senate, the president has confirmed record numbers of public defenders and civil rights attorneys to lifetime federal judgeships, a shift from the more traditional corporate lawyers tapped for these jobs.
Biden has confirmed a total of 136 people to lifetime federal judgeships ― more than the past three presidents had confirmed by this point in their presidencies. As of last month, 66% of his nominees have been women and 70% of his judges who have been confirmed have been women. Additionally, 65% of his nominees have been people of color, and 64% of his judges that have been confirmed have been people of color.
His confirmations break down to 100 U.S. district court judges, 35 U.S. appeals court judges and one Supreme Court justice, Ketanji Brown Jackson.
Jackson dissented on all three of the Supreme Court’s most controversial decisions last week, leading or joining blistering critiques of the conservative majority’s decisions. In some of her more choice quotes, she accused the majority of approaching the affirmative action case with a “let-them-eat-cake obliviousness” to racism, and in the LGBTQ+ rights case, effectively deciding to demote “gays and lesbians for second-class status.”
As the Supreme Court’s first Black woman and first former public defender, Jackson’s personal and professional background have a profoundly different impact on her approach to law than, say, Justice Samuel Alito, a conservative white man who was previously a deputy U.S. attorney general and U.S. attorney known for prosecuting white collar crimes.
The White House regularly touts the diversity of its judicial nominees, particularly in moments like this.
“President Biden told the American people he would make upholding the rule of law with deeply qualified judicial nominees who represent the diversity of our nation a core priority. Fulfilling that promise is one of his proudest accomplishments,” White House spokesman Andrew Bates said in a statement.
“The last two weeks alone saw the confirmation of six diverse judges who have experience as civil rights attorneys,” Bates said. “President Biden is determined to keep driving forward with more barrier-breaking nominees.”
Schumer sees the bigger picture with the courts, too. He said Democrats need to buckle in for a “sustained” push to restore balance to the courts.
“The ill-founded and disappointing decisions from the Supreme Court are a stark reminder that it will take a sustained effort to rebalance our federal courts and restore the values that have made the United States a beacon for freedom, democracy, equality, and opportunity,” Schumer said in a statement. “Senate Democrats will continue to approve fellow Americans for the federal courts who far better reflect the values, diversity, experiences, and perspectives of the American public.”
For progressive judicial advocates like Fallon, it’s a game changer that the White House and Senate Democratic leader are even talking about judges in this way. And it’s part of a new long game.
“Now that Biden and Schumer have gone to such lengths to prioritize these kinds of lawyers for the bench, the pressure on future administrations to follow suit will be immense,” said Fallon.
“It is a big deal,” he emphasized, “in the sense that young law school graduates can now safely pursue careers aligned with their sense of idealism and know that such service will not be considered a political liability if they someday wish to pursue a lifetime appointment.”