The NPR Politics Podcast - Joe Biden's Judicial Legacy

Episode Date: January 8, 2025

When he took office, President Biden promised to diversify the federal bench. During his four years in office, he succeeded in making that promise a reality. These lifetime appointments will outlast his administration. This episode: White House correspondent Asma Khalid, national justice correspondent Carrie Johnson, and White House correspondent Tamara Keith.The podcast is produced by Bria Suggs & Kelli Wessinger, and edited by Casey Morell. Our executive producer is Muthoni Muturi.Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from St. Jude Children's Research Hospital. Active and retired federal employees and military staff can support St. Jude during the 2024 Combined Federal Campaign. Visit stjude.org slash cfc and donate now using the code 10560. Hey, NPR Politics. This is Elias in San Francisco, California. I'm heading out to the airport right now. I'm leaving for a five-month solo journey through Spain. Wow. I turn 21 tomorrow, and this will be my first time leaving the country. This podcast was recorded at...

1.20 p.m. Eastern Time on Wednesday, January 8th of 2025. Things may have changed by the time you hear it, but I'll be a year older and long on my way by then. Okay, here's the show. Happy birthday. Happy birthday, Elias. You are jumping into the deep end. Please have some chocolate con churros for me. Oh, yes. Hey there. It's the NPR politics podcast. I'm Asma Khalid. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Tamar Keith. I also cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Tamara Keith. I also cover the White House. And today on the show, a look back at President Biden's judicial legacy as he prepares to

leave the White House. And Carrie, I want to begin the conversation with you because you cover the Justice Department. So let's start by just looking at the numbers. How many judges did Biden appoint during his four years as president? This came in just under the wire, but Biden managed to appoint and the Senate managed to confirm 235 federal judges. Those are lifetime tenure judges. Those people can sit with good behavior for the rest of their lives if they choose. So that's going to be one of Biden's most enduring legacies moving forward. A lot of people.

You mentioned a record. I recall that President-elect Trump boasted that during his first term, he had broken every record on appointing judges. So can you help us understand what the comparison is between Trump's first term and Biden's term? Sure. So by the numbers, Biden managed to confirm one more judge than Trump did. Trump had 234, so Biden may have bragging rights, but there is a difference here.

Trump had many more appeals court nominees and he had more Supreme Court nominees as well, in part because with the help of then Senate leader Mitch McConnell, McConnell in the Senate kept open many, many vacancies for Trump to fill when he came into office. And it was remarkable Trump kept, he kept commenting on his good fortune, like it just happened for him. But in fact, it was Mitch McConnell who had a, he was on a mission to prevent Obama from getting more judges confirmed and allow the Republican president then to shape the judiciary. President Trump was able to nominate in a point about a quarter of the judiciary and

now President Biden has about a quarter of the judiciary. Total, you're saying, out of the total makeup of judges. The total federal bench. Yeah. Carrie, can you talk to us in more detail about who exactly Biden named? I recall when President Biden first took office, he pledged to diversify the federal bench. When you look at the profiles, the statistics of who he appointed, did he accomplish that goal?

In large part, he did. Osment, you and Tam will both remember that on the campaign trail, Biden promised to appoint the first black woman to the Supreme Court. He certainly did that, Justice Katanji Brown Jackson. He also appointed more than 150 women to the bench, more black women than any other president had appointed in the past combined, the first four Muslim American federal judges ever, and 12 openly LGBTQ judges. Biden also made really a priority, professional diversity. By professional diversity, I mean not just former prosecutors and people who were partners at big law firms who make a lot of money.

Biden appointed a bunch of public defenders. He also appointed a bunch of civil rights lawyers and people at organizations who don't normally go directly onto the bench. I'm talking here about places like the American Civil Liberties Union, unions, the Center for Reproductive Rights, the Brennan Center for Justice, and even the Innocence Project. Those are backgrounds we don't often see on the federal courts or at least we have not often seen since the days of Jimmy Carter, since we're talking so much about Jimmy Carter this week. I spoke with Lena's Warren Stein.

She works at the Leadership Conference for Civil and Human Rights. Diversity, both in terms of personal background as well as professional background, improves judicial decision-making by ensuring that more viewpoints are heard. And we know that it also helps build the public trust in the judiciary to have judges who look like and come from communities. Beyond that, I think it serves as an important message to future generations that people who look like them

or who have experience like them can serve in these high positions of power. So it really does seem like this will be a lasting legacy of President Biden's administration. Yes, and President Biden, who is all about legacy and has been thinking about the mark that his presidency will make since well before he realized he'd be a one-term president, was very focused on this. You know, he is a former chairman of the Senate Judiciary Committee back when he was a senator for 36 years. And he was very focused on working with Democrats in the Senate who were able to maintain control

of the Senate, which allowed him the ability to get this many. They held an event at the White House last week to celebrate hitting this landmark. Senator Schumer was there, the Democratic leader, now the minority leader, and Senator Dick Durbin, who was the chairman of the Judiciary Committee. And Schumer said that he called Durbin a nudge, which is a Yiddish word, to mean like, this guy just kept bugging me to bring up these judges for confirmation votes. It takes time to move these people through the process. So this was a partnership between the White House and also the Senate that, you know, Senate Democrats put a priority

on essentially beating Trump's number. All right. Well, on that note, let's take a quick break and we'll be back in a moment. Support for this podcast and the following message come from Dignity Memorial. When your celebration of life is prepaid today, your family is protected tomorrow. Planning ahead is truly one of the best gifts you can give your family. For additional information, visit DignityMemorial.com. After the election, the economy feels like one big, huh? Good thing there's the Indicator from Planet Money podcast. We take a different economic topic from the news every day and break it down in under 10 minutes.

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But Carrie, there is no doubt that Donald Trump during his first term in office was able to secure a more conservative Supreme Court. And I am curious if there is anything that Biden has done these last four years that you see shifts the overall ideological bent of the judiciary. Yeah, Trump appointed many, many judges. He had three appointments to the Supreme Court locking in a conservative supermajority for maybe a generation. And Biden has managed to get a lot of judges on the bench during his four years, but he hasn't been able to shape the ideological makeup or reshape the ideological makeup of

some of the lower courts or the Supreme Court. And I think that may make a difference in the long run. You know, Biden has managed to install a lot of judges on the district courts in particular, and we know that district court judges matter because the Supreme Court only takes a tiny number of disputes every term, just a tiny number, fewer than 100 for a lot of years now. And so most cases are decided by the lower courts, voting rights cases, gun cases, reproductive rights cases, and all of those judges are going to matter. It's also worth noting that some judges appointed by former President Carter are still on the bench, even now. Most of them are on senior status, no longer actively

hearing lots of new cases, but they are still making a point and making some decisions. So these judges can really have a long arc. Were the judges that President Biden was able to appoint, were they replacing Republican appointed judges or were they more replacing democratically appointed judges? Well, there's lots of evidence that some judges time their retirement announcement based on the party affiliation of the president who can appoint their successor. In fact, we've had some judges who suggested before the November election that they would retire rescind their retirement, presumably because they don't want President-elect

Trump to be naming their replacements. That happens all the time. Judges are political animals sometimes, even though they claim they're not. They certainly understand the process. They at least understood enough to get past Senate confirmation. And so they can do math like everybody else. TAMARA KEITH-MORRISON TAM, I want to ask you about what we could expect to see possibly in these next four years, because you covered Donald Trump's first administration. And you know, I hear what Carrie's saying about the record number of judges appointed.

But one question I've had in my mind is, is this sort of a Biden interregnum? Trump was there for four years. Biden has had these four years. But Trump is coming back. And he will now have an opportunity to shape the judiciary as he wants, won't he? He is coming back.

He doesn't have a bunch of open positions in the judiciary to fill that Mitch McConnell left for him. So he doesn't have the sort of running start that he had the first time around. But certainly there could be another Supreme Court justice that retires or dies. Trump certainly has a chance. I think the other thing to think about in this time period is if you remember the first time President Trump was in office, a lot of his policies were taken to court and sometimes they were thrown out like the initial effort on the travel ban from Muslim majority countries. It took a couple of tries and it was tangled up in the courts. We can expect that there will be challenges to some of the things that a President

Trump tries to do and perhaps we don't know which judges will be assigned but it's possible that some of these judges will end up with those cases. It's also possible which is we've seen throughout Biden's presidency, that judges that Trump appointed will end up getting cases. And, you know, one judge can matter. I just want to point out that one judge who has really mattered is Eileen Cannon, who sits on the district court in South Florida. She was appointed by Trump rather late and confirmed rather late in Trump's first term. And yet she was handed the Mar-a-Lago classified documents case, which she very

famously threw out against Trump on the first day of the Republican National Convention last year. And so one judge can make a difference when it counts. Kari, since you mentioned a case against Donald Trump, and since you are here with us on today's show, I want to ask you about some of the news we are hearing about the special counsel's report about President-elect Donald Trump. I will confess I was sort of reading through things, but a lot of it feels very confusing. Can you just fill us in on what we should know? Sure, thanks.

So remember that after the election, Jack Smith, who obtained two indictments against Donald Trump, basically walked away from those cases because of a long-standing Justice Department view that sitting presidents cannot be prosecuted. And so both those cases are dead as to Trump, but Smith still had an important job to finish, and that was writing a final report and delivering it to the Attorney General Merrick Garland. We now know that Smith delivered that report yesterday and it has two volumes. The first volume talks about the January 6th election interference case against Trump here in Washington, D.C. And the second volume talks about the indictment against Trump and two of his longtime aides that accused them

of obstruction of justice for taking classified materials out of the Trump White House and then refusing to hand them over when the FBI asked for them back. And so the two defendants in South Florida, Walt Notta and Carlos de Oliveira, those are the longtime Trump aides, they filed a court action in Florida this week seeking to bar the Justice Department from releasing the report. And guess who got that case? Aileen Cannon, the very same judge. The judge you were just mentioning.

So even though that case was no longer before Judge Cannon, because it's on appeal, she basically has issued a temporary block against the Justice Department blocking the DOJ from releasing the report. Well, we now know today, DOJ says it does not plan to publicly release the part of the Jack Smith report that deals with classified documents, in part because there are two men who still could be prosecuted for that. So it's not fair to them. It would prejudice them to throw out a whole bunch of public information about the decisions that Jack Smith made in that case. But what the DOJ does wanna do is release the federal election interference part

of that report, the January 6th part of that Jack Smith report. And it's now waiting to see if it has authority and okay from the appeals court to do that. We could see that report, depending on how quickly the appeals court acts, maybe later this week or next week. Certainly it's gotta come out before Trump takes office. So it's to be continued.

Kari, why is it so important that the public sees the special counsel report? You know, it's part of the regulations that created the special counsel that he or she is supposed to deliver a final report. And in recent times, we've seen those. The public has seen those. We saw what Robert Herr said about President Joe Biden in that classified documents investigation. We've seen what Robert Mueller said about Trump during his first term in office. And so it kind of is the last word for history on why prosecutors decided to do what they did and any potential disagreements they may have had with DOJ Brass about how they went about their work. In this case,

because it seems there will not be a prosecution of Donald Trump over the events of January 6, 2021, this report may be the coda. And people who were injured on January 6, 2021, people like Washington DC police officer Danny Hodges have implored the attorney general and President Biden to make this report public. Well, let's leave it there for today. I'm Usma Khalid. I cover the White House. I'm Kerry Johnson.

I cover the Justice Department. And I'm Tamara Keith. I also cover the White House. And thank you all, as always, for listening to the NPR Politics Podcast. Support for NPR comes from NPR member stations and Eric and Wendy Schmidt through the Schmidt Family Foundation, working toward a healthy, resilient, secure world for all on the web at thesch Schmidt.org. The Indicator is a podcast where daily economic news is about what matters to you.

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