People For the American Way

Biden and Senate Must Promptly Fill Vacancies on Key Appellate Courts

Biden and Senate Must Promptly Fill Vacancies on Key Appellate Courts

Although former President Trump and the Republican-controlled Senate did tremendous damage to people’s rights by appointing 54 judges to the powerful federal courts of appeals, one step below the Supreme Court, President Biden and the Senate now have an important opportunity to repair and reverse much of that damage. There are now seven vacancies on the federal appellate courts, including two apiece on the Second and Tenth Circuits. And more vacancies are already projected over the coming months. President Biden and the Senate must act now to fill these and other vacancies on the federal courts.

Specifically, there are now two vacancies on the powerful Second Circuit Court of Appeals, which covers New York and several other states. As a result of Trump appointments, the Second Circuit “flipped” from a court that had a majority of Democratic nominees to one in which most judges had been nominated by Republican presidents, including five by Trump. Filling the two vacancies with Biden nominees would restore the previous balance from before Trump became president. The Tenth Circuit Court of Appeals, which includes Colorado and five other states, now has two Trump appointees. Two judges recently took senior status,  and filling those vacancies with Biden nominees would restore the Democratic majority on that court that existed before Trump.

More important than statistics, the Trump judges on these two important appellate courts have done tremendous harm to the rights of real people, particularly minorities. Take the case of George Mandala and Charles Barnett, two African-Americans who received job offers from a large information technology company. The offers were withdrawn due to company policy when it was learned that each had previously been convicted of a felony, with no consideration of what the offenses were, evidence of rehabilitation, or anything else. On behalf of themselves and other African American job applicants, the two filed suit under federal anti-discrimination law, contending that the policy had an improper discriminatory impact on African Americans, as in many other cases challenging job practices.

Without even any discovery concerning the specifics of the company’s policies and actions, however, Trump judges Richard Sullivan and William Nardini ruled that the case should be dismissed, and all five Second Circuit Trump judges cast deciding votes to refuse to allow the full Second Circuit to reconsider the case. As one dissenting judge put it, by using an “eccentric and heightened” standard and improperly “importing facts from outside the record,” the judges in the majority (five of seven of whom were nominated by Trump) “suggest our Court will find ways to shut the door on litigants seeking to vindicate their civil rights.” Filling the current vacancies with fair-minded judge nominated by Biden can help open that door .

Or take the Tenth Circuit case involving the shooting of Marquez Smart. Hundreds of people, including African American man Smart, were leaving a concert in Wichita. A shot was fired from somewhere near Smart, who was not carrying a gun, and the crowd started to run. A police officer claimed he thought Smart had fired the shot and, when he was five feet directly behind Smart, the officer shot him and he fell to the ground. He died when a second officer shot him three more times on the ground. Smart’s estate filed suit for use of excessive force, but Trump judge Allison Eid cast the deciding vote to rule that the officer who first shot Smart had qualified immunity and could not be held accountable for misconduct because a reasonable officer would not have had “fair notice” that shooting Smart violated his constitutional rights.  As the dissenting judge explained, “any reasonable official would have understood the illegality of unreasonably shooting a person who is unarmed, nonthreatening, and running away” like Marquez Smart.

As covered in People For’s Confirmed Judges, Confirmed Fears series, there are many more decisions like these in the Second and Tenth Circuits where Trump judges have grievously harmed the rights of black Americans and many others, in cases concerning official misconduct, mine safety, consumer rights, and more. In order to help restore the balance on these courts, as well as to help repair the damage done to the rights of countless people in those areas and more, it is crucial that President Biden and the Senate promptly nominate and confirm fair-minded judges to fill the vacancies on these and other federal courts around the country.


Biden Administration, judicial nominations, Second Circuit Court of Appeals, Tenth Circuit Court of Appeals, Trump judges