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Senate assesses Biden’s legal choices ahead of queue

But, he added, “I think once we have the leadership of Main Justice, we should potentially look to the judges, because some of these vacancies are exceptional.”

Central to Biden’s efforts to put his mark on the DOJ is his choice for Attorney General, DC Circuit Judge Merrick Garland. Garland is expected to get a hearing soon, although it’s unclear how quickly it is.

New Judiciary Committee chairman Sen. Dick Durbin (D-Ill.) Said he plans to negotiate with Republicans to see if the usual 28-day wait between formal appointment and hearing can be lifted for Garland.

“As soon as we have the paperwork and a … decent interval has passed, we want to get him to appear before the committee,” Durbin said. “We need an attorney general in this country and the sooner the better.”

A White House spokesperson declined to comment on the delay in submitting Garland’s official nomination papers. However, Biden did not announce his selection of the veteran legal scholar and failed the Obama Supreme Court candidate until Jan.6, after most of the Cabinet’s other choices.

Biden appeared to have waited to announce his appointment as attorney general and other picks for top DOJ positions until the results of the Georgia runoff election indicate Democrats would take control of the Senate.

Adding to scheduling complications: The composition and leadership of the Judiciary Committee has been in limbo due to a standoff between Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell over a set of rules keys to the Senate. The main fight over the package was resolved on Monday, but wording still needs to be finalized, leaving commissions still in a state of uncertainty.

But even with the committee in place, questions remain as to whether its members should work with Biden’s entire potential slate of DOJ candidates, or just confirm top officials before focusing on filling empty seats in them. circuit and district courts. Democrats have been deeply frustrated with the Republicans’ ability to supply the federal bench with conservative jurists while blocking the Liberals from consideration, thus strengthening the right-wing’s grip on the judiciary for a generation or more.

“Candidates for the bench cannot be after the deputy deputy secretary of any department. … They have to see it as a top priority and put it ahead of the other candidates, ”said Caroline Fredrickson, who spent a decade as president of a group of liberal lawyers and judges, the American Constitution Society. . “These are lifelong dates. … just load them first.

Deciding which candidates should wait could be difficult. Positions confirmable by the Senate in the Department of Justice include officials who oversee the enforcement of antitrust, civil rights and tax laws, as well as officials who provide law enforcement grants, regulate firearms and run the Drug Enforcement Agency. There are also US attorneys and US marshals for every district in the country that will require confirmation.

The Judiciary Committee also approved top immigration applicants to the Department of Homeland Security and even a Department of Commerce official who handles patents and trademarks.

Every candidate doesn’t have to have an audition, but if Democrats shorten the process, Republicans can slow down the next step when Democrats seek approval for Senate candidates.

Fredrickson, who now works at New York University’s Brennan Center for Justice, said she would rather see the Department of Justice lobby with acting officials and acting US attorneys for a while, if that would allow Biden to have more judges on the bench.

“There are many qualified lawyers in the Department of Justice who can step in and act,” she said.

It’s unclear if and when Biden plans to replace top federal prosecutors in 93 districts across the country. In a memo last week, a DOJ official said the administration was not taking immediate action to oust the officials who are currently doing the work.

“All remaining US lawyers and US marshals have been invited by the new administration to continue serving for the time being,” wrote Lee Lofthus, longtime DOJ administrative chief.

Some of the considerations are quite delicate. Several acting U.S. attorneys deal with politically sensitive investigations into matters relating to the Trump administration. At least one, Delaware’s top federal prosecutor, is leading a criminal investigation into the financial transactions of President Joe Biden’s son, Hunter Biden.

The leader of a group pushing for confirmation of liberal judicial appointments and an expansion of the federal judiciary agreed that judges should be given priority, but said the White House should approve certain judicial choices first.

“The nominees of the Ministry of Justice will undoubtedly be the priority for the Judiciary Committee, as there are already people appointed and the first wave of judicial candidates has not yet been appointed. But once they are, we want to see the committee prioritize them with the same urgency Republicans did for Trump’s choices, ”said Brian Fallon, co-founder and executive director of Demand Justice.

With only a handful of the DOJ’s top picks announced by Biden so far, activists’ call to focus on judges may be as much aimed at the White House as at the Senate, seeking to make the point. that the filling of judicial posts should not be lost in the midst of the thousands. political appointments Biden will make in the coming months.

Biden’s team responded to emergency calls by stepping in during the transition to initiate the process of soliciting and vetting potential legal choices. New White House lawyer Dana Remus wrote to senators ahead of Christmas, asking them to nominate candidates for the 40 or so vacant District Court positions unfilled by the Trump administration. That number is expected to rise in the coming weeks, as Democrat-appointed judges announce retirements.

Virtually all of the current vacant positions are in states with Democratic senators, as Republicans have left in place the so-called blue-slip policy for judges at the district court level, giving senators the State of origin a de facto veto on the candidates of their States. Durbin did not say if he would follow the same policies the GOP did under the most recent bench presidents, Sen. Chuck Grassley of Iowa and Lindsey Graham of South Carolina.

In his letter, Remus urged senators to submit potential candidates by January 19, but sources familiar with the process say few have met that deadline. Many senators use formal committees that review candidates for approval and make recommendations. Remus also asked senators to consider less traditional candidates, such as public defenders and legal aid lawyers, who may be less prepared than law firm partners to produce a detailed application on short notice.

“A lot of their selection boards are currently full of attorneys and corporate attorneys, which is why they always recommend exactly these types of attorneys,” Fallon said. “Biden’s appeal has the useful effect of bringing about a complete reform of these existing systems. “

The screening of potential White House forensic CVs is being led by White House senior lawyer Paige Herwig, with the assistance of special lawyer Tona Boyd, a person familiar with the situation said. Herwig is a former lawyer for Senator Dianne Feinstein (D-California), while Boyd is a former lawyer for Senator Cory Booker (DN.J.). Both senators sit on the Judicial Committee.

The sense of extreme urgency that many Democratic activists and Hill staff members express over the judicial appointment issue stems from burning memories of events 12 years ago when President Barack Obama’s White House was seen as slow to put forward candidates for justice – even though Democrats had the necessary supermajority at the time to overcome any GOP obstruction.

In August 2009, Senator Ted Kennedy (D-Mass.) Passed away. His absence and eventual replacement by Senator Scott Brown (R-Mass.) Gave Republicans the power to slow down and block Obama’s candidates through filibuster. The GOP has also aggressively used the blue process to retain numerous constituency and district court candidates.

The slowdown in confirmations persisted for several years until former Senate Majority Leader Harry Reid rolled out the so-called nuclear option in 2013, breaking the blockade and allowing Obama to win confirmation from four candidates for the powerful DC Circuit Court of Appeals.

In order to speed up the work of the Senate Judiciary Committee this year, Democrats discussed the possibility of holding a confirmation hearing where Garland would appear alongside Biden’s picks for DOJ slots # 2 and 3, Lisa Monaco and Vanita Gupta.

“We talked about it, but we haven’t made a final decision,” Durbin said. “Historically, it has always been the GA alone. What Republicans did for the first time was combine MP and associate. I won’t rule it out … but I tend to stick to the GA separately.


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