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Biden's Vision For Federal Court Reform


We want to take a few minutes now to focus on the subject of court reform. President Biden is expected to create a commission soon to consider possible reforms to the Supreme Court and other federal courts. Biden promised to do that as a candidate. But there's another reason the subject is near the top of the president's agenda. More than a third of all federal appeals court judges are eligible for retirement or to transition to senior status. Either way, that opens up vacancies that President Biden can fill.

And that's an opportunity for Democrats to try and undo one of President Trump and the Republicans' most far-reaching accomplishments, the appointment of judges at a record pace during Trump's one term in office, and in doing so, reshaping the federal judiciary. We called Dahlia Lithwick to talk about all this. She writes about the federal courts and the law for Slate. She also hosts the legal podcast "Amicus," and she is with us now. Dahlia Lithwick, thank you so much for joining us.

DAHLIA LITHWICK: Oh, thanks for having me, Michel.

MARTIN: Could you just start by setting the table? Give us a number or two. What has been President Trump's impact on the courts - of course, you know, aided by the former Senate majority leader, Mitch McConnell?

LITHWICK: I think the word is juggernaut. He seated 234 judges on the federal courts, including three Supreme Court justices. He beat out records in four years of the presidents who came before him in eight years. So it was truly, I think, the lasting legacy that they were mashing judges onto the federal courts even in the lame duck period.

MARTIN: And as we mentioned, President Biden could have the opportunity to appoint a third of federal judges at the court of appeals level. That's the level immediately below the Supreme Court. What is the administration and the Democrats doing to move on this?

LITHWICK: Well, I think that the real lesson that they are taking in the Biden era is that this was a mistake of the Obama era, that President Obama, when he first was elected, kind of back-burnered the federal judiciary. He had urgent other priorities. There was massive economic reform. He wanted to really raise health care reform. And what that meant was by the time he got to the end of his presidency, where he was being blocked at every turn from getting nominees onto the bench, what he left to Donald Trump was this gift - right? - of all these empty seats, which Trump promptly filled, and then more. And so I think what Biden has done is said, whatever I do, whatever else is urgent, including COVID relief, including financial relief and economic relief, judges need to be on the front burner. And here, I think it matters that Ron Klain, his chief of staff, has been doing this judicial work for a long time.

MARTIN: Well, you know, to that end, talking about the sort of the mechanics of the thing, President Trump filled judicial vacancies with a lot of help from the Federalist Society. In fact, he said he was going to do this, and he did do that. And they provided Trump with lists of conservative judges to appoint. So is there a Democratic equivalent of the Federalist Society? Are there other groups that the Biden administration is relying on to help fill that role?

LITHWICK: I think that the Biden administration takes great pride in the fact that there isn't one singular group to contract out to. I think the American Constitution Society, which styles itself as the analogue to the Federalist Society, is absolutely in the game now. But I think they would be the first to tell you that no one group they would suggest would appropriately be kind of dominating the field here.

MARTIN: And do we have a sense of what President Biden's vision is for the federal courts?

LITHWICK: I think what you're going to see is a callback now to the Obama vision of the judiciary that was less tagged to any one ideological worldview, any one resume, any one law review article that purported to speak about, say, executive power or abortion or LGBTQ rights. What you're going to see is an echo of the Obama priority, which is creating a judiciary that looks like America.

MARTIN: Many people will remember the whole controversy over the appointment of Amy Coney Barrett to the Supreme Court. This was just weeks before the presidential election. Some Democrats responded by calling for judicial reform, including considering expanding the number of seats on the Supreme Court. And during the campaign, Biden indicated he's not in favor of that, saying he didn't want to play, quote-unquote, "political football" with the court. But do we know if there's any further thinking about that? What - does he sort of have some overall view of, you know, what needs to happen?

LITHWICK: I think that he, first of all, has already said that there is going to be a commission. And some of the folks that are on that commission have actually talked about maybe court expansion isn't that bad. I think Bob Bauer is not for court expansion. He's for term limits. But it does seem as though they're putting together a commission that is at least going to probe whether there's anything that can be done to keep this promise that the Supreme Court can't be allowed to just be the kind of dead hand of the Trump administration that strikes down every single thing that Biden does in the coming years.

And I think the other thing that I would emphasize is that there is a sense that because the Supreme Court only hears a tiny, tiny fraction of the cases that are - come before the federal courts that it also isn't useless to be doing this important work of putting judges as quickly as you can onto the federal district courts and the federal appeals courts with the notion that the bulk of those cases, if you can recapture those courts, would make a huge difference in the very short term.

MARTIN: That was Dahlia Lithwick, a senior editor at Slate and host of the "Amicus" podcast. Dahlia Lithwick, thank you so much for joining us.

LITHWICK: It's always a pleasure. Thank you. Transcript provided by NPR, Copyright NPR.

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