First published in The Hill.
On Nov. 20, the Eighth Circuit Court of Appeals, based in St. Louis, caused an earthquake in the civil rights world.
The court ruled that despite over 50 years of precedent, private parties (meaning people like you and me) don’t have the right to sue to enforce Section 2 of the Voting Rights Act. That’s the part that prohibits voting practices that discriminate based on race or color — you know, one of the most obvious and important parts.
The judges who made this decision, David Stras and Raymond Gruender, were nominees of Presidents Trump and Bush, proving decisively once again that who gets confirmed to the federal bench ultimately makes a huge difference in our daily lives. Incredibly, these judges made their ruling even though civil rights groups like the NAACP have been suing to enforce voting rights under the Voting Rights Act for decades, taking some cases up to the United States Supreme Court.
This one is likely headed to the Supreme Court too, where today, Trump judges dominate. That’s thanks to Trump and Sen. Mitch McConnell’s (R-Ky.) race to stack all the federal courts with as many ultraconservative judges as possible.
Meanwhile, President Biden and the current Senate have always taken seriously their responsibility to rebalance the courts that were unbalanced by Trump. For a long time, they kept up a brisk nomination and confirmation pace.
But reportedly, the Biden administration is now falling behind Trump for the number of judges nominated and confirmed at this point in the first presidential term. And the clock is ticking toward the end of the year, when nominees not confirmed would be returned to the White House for renomination.
That was enough for Senate Judiciary Committee member Sen. Richard Blumenthal (D-Conn.) to sound the alarm.
“My feeling is, we should stay weekends,” to get the job done, he said. “We should postpone the Christmas recess. We should do whatever it takes — and I know that view is shared by a number of my colleagues, and we’re going to be pressing it with the leadership.”
Sen. Blumenthal, we couldn’t agree more.
Trump’s 234 federal judges with lifetime appointments have spent years diligently turning back the clock on our rights; the most egregious recent example is the overturning of Roe v. Wade. And the whole country now knows that the courts will ultimately be the place where it’s decided whether we are a nation where people have any right to make their own reproductive decisions.
While all this has been going on, growing numbers of Biden judges have been quietly protecting people and upholding rights, including reproductive rights, in lower courts across the country.
In the Ninth Circuit, Biden judges Lucy Koh and Salvador Mendoza cast the deciding votes last month to keep a near-total abortion ban from going into effect in Idaho, while a federal challenge of the ban works its way through the courts.
In October, a Biden judge in New Mexico, David Urias, upheld a law banning guns in parks and on playgrounds, slapping down a demand by pro-gun activists that guns be allowed where kids are playing.
In another case last month, Biden judge Eunice Lee on the Second Circuit wrote the decision that will let family members of two Army pilots killed in a helicopter crash sue the manufacturer of a defective engine part.
These are just the most recent examples of a list that goes on and on, of Biden judges upholding the rights and freedoms of regular everyday people — not just the wealthy and powerful. Biden’s judicial nominees are not just highly credentialed; they are more diverse and come from more walks of life than has been traditional for federal judges, giving them vital insight into the struggles ordinary people face.
We need more of these judges, and there is more the Senate can do. We already have proof that a lot can be accomplished in the final month of the year — four years ago, McConnell got 23 Trump judges confirmed in December, bringing his total at the end of 2019 to 187. As of Nov. 30, President Biden had 159 judges confirmed with 19 waiting for final confirmation votes this year.
Next year will be the last in which we can be sure of two things: a Biden presidency and Senate leadership that is committed to confirming his judicial nominees. There’s no time to waste in clearing the decks of waiting nominees to make room for more. And every reason to vote in 2024 with the future of our courts in mind.