When he was president, Donald Trump often boasted about an outsized number of conservative judges he placed on the U.S. Supreme Court and on federal benches around the country.
But the federal district court and the federal appeals court handling Maryland cases had few vacancies during the Republican’s four years in office, and were left relatively unchanged.
Now, little more than a week after assuming office, Democratic President Joe Biden has been handed three openings on the U.S. District Court for Maryland. That will allow Biden to place his stamp on the 10-member court in a way that Trump could not.
In a Dec. 22 letter obtained by The Baltimore Sun, incoming White House counsel Dana Remus explained what sort of judges the new administration would be looking for.
“We are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life,” Remus wrote to U.S. Sens. Ben Cardin and Chris Van Hollen of Maryland, along with other Democratic senators, who will recommend judge candidates to Biden.
Analysts say Biden also will likely get the opportunity in the coming years to fill seats on the 4th U.S. Circuit Court of Appeals, which has a number of judges of retirement age. The court is based in Richmond, Virginia, and hears appeals from federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina.
Getting three immediate slots on Maryland’s federal district court is “a lot out of a 10-judge complement. That’s like a generational turnover, in some ways, in less than a year,” said University of Richmond law professor Carl Tobias.
While the court is already dominated by Democratic-nominated judges, Biden’s lifetime appointments will allow him “to get people much younger on the court, so you’re buying, like, 30 years,” Tobias said. Each appointment, he said, means “one fewer vacancy that a Republican gets to fill, if you’re looking at it in partisan terms.”
The court, whose judges are split between courthouses in Baltimore and Greenbelt, considers a number of politically charged cases. In recent years, it upheld the state’s assault weapons ban, sided with a transgender high school student seeking to use a boys’ locker room, and allowed lawsuits to proceed challenging Trump’s ban on travelers from majority-Muslim countries.
Its chief judge, James K. Bredar, oversees a 2017 consent decree between the U.S. Justice Department and the city of Baltimore that calls for significant police reforms after a federal investigation found Baltimore Police Department officers routinely violated residents’ rights.
Nearly 4,000 civil cases and 500 criminal cases were filed with the court in the fiscal year ending in September 2019, the latest for which figures are available.
Trump ended up with just one vacancy to fill on the court, and the spot went to Stephanie Gallagher, who was originally nominated by then-President Barack Obama and drew support from both parties.
While its decisions can be reversed at higher levels, “it’s very significant who is on the lower federal court,” said Mark Graber, a constitutional law expert at the University of Maryland’s Carey School of Law in Baltimore. Graber said the fact-finding routinely conducted by lower courts often requires important judgments, citing a hypothetical example of a car pulled over by police. Liberal judges, he said, would “be more inclined to say the car was pulled over because of an illegitimate race motive.”
Biden’s opportunities arose when judges Richard D. Bennett, 73, and Ellen L. Hollander, 71, decided to become senior judges once their successors are confirmed by the U.S. Senate, aides to Cardin told The Sun this week. A third judge, Catherine C. Blake, 70, is to assume senior status in April.
As senior judges, the three will be semiretired and assigned reduced workloads. All are based in Baltimore.
Cardin said their potential replacements will be screened by a panel of lawyers and then he and Van Hollen will interview them. The senators will then make recommendations to the White House.
“There is no political test for those who are interested,” Cardin said.
Biden’s nominations need the approval of the Senate, which must confirm all federal judges. It is split evenly between Republicans and Democrats, with Vice President Kamala Harris having the deciding vote.
Bennett was an appointee of Republican President George W. Bush. Blake was nominated by President Bill Clinton, a Democrat. Obama, also a Democrat, picked Hollander.
Analysts say it’s not uncommon for judges to strategically step down following an election in which the White House shifts from one party to the other.
“It’s only human that you care about what kind of person takes the spot you left open,” said Kevin Walsh, who teaches at the University of Richmond law school and is a former clerk for the late conservative Supreme Court Justice Antonin Scalia. “How many would rather be replaced by Biden versus a hypothetical Republican four years from now?” Walsh said.
Blake and Hollander announced their decisions shortly after Biden took office Jan. 20. Bennett’s decision was made sometime before January, although it’s not certain when. Bennett and Blake declined interview requests from The Sun, and Hollander did not respond to inquiries made to aides.
In her letter, Remus — then White House counsel-designate — asked the senators “to send to us at least three candidates” for any judicial opening.
Bennett, Blake and Hollander are the only current judges on the court who are at least 70. Obama appointee Paul Grimm is 69, according to state records.
Trump and then-Senate Majority Leader Mitch McConnell, a Republican, prioritized filling judicial vacancies. In his one term, Trump was able to get more than 200 federal judges confirmed, including 54 on appeals courts. The 54 is one less than were confirmed in two terms under Obama.
Trump inherited more than 100 court vacancies nationwide when he assumed office in 2017. His predecessor — Obama — had a difficult time getting nominees approved after Republicans took Senate control in 2014.
Democrats say Trump’s appointments were heavily tilted toward conservatives. Trump vowed before taking office that he would appoint Supreme Court justices to overturn the decision in Roe v. Wade that affirmed the right to abortion.
“I think that politics played a lesser role prior to the Trump administration,” said Maryland Attorney General Brian Frosh, a Democrat. “He brought it to a new level.”
Since federal judges receive lifetime appointments, Trump’s picks give him a decades-long legacy across the U.S.
“It is a concern of mine that — between Trump and Senator McConnell — they confirmed a whole host of very right-wing judges with right-wing ideologies, and in many cases they were very young,” Van Hollen said.
After the 200th judge was confirmed last year, McConnell said his effort to confirm Trump-nominated judges was not a “partisan or political victory.” Rather, McConnell said in a prepared statement: “It is a victory for the rule of law and for the Constitution itself.”
Trump placed three judges on the 4th U.S. Circuit Court of Appeals, which is one rung below the Supreme Court.
“Except for the relatively small number of cases the Supreme Court decides each year, the 4th Circuit is the last word on the meaning of federal law in Maryland,” said Walsh, who also clerked for 4th Circuit Judge Paul Niemeyer.
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But even with Trump’s appointments, nine of the appeals court’s judges were nominated by Democratic presidents and six by Republicans.
“I think over the last 10 years, it has not been a conservative court compared with other federal appellate courts,” Walsh said.
The court has scheduled oral arguments for March 8 in a closely watched Baltimore case. In it, the ACLU alleges a surveillance plane program the city tried to help lower violent crime rates violated privacy rights.
The pilot program took its final flight in Baltimore on Oct. 31, and new Democratic Mayor Brandon Scott has said he opposes it. While Baltimore considers the ACLU’s lawsuit moot, the city’s attorneys may have no choice but to continue arguing that the surveillance planes are constitutional — even if Baltimore doesn’t plan to use them, according to the city solicitor’s office.
“It is a nationally important case on the cutting edge regarding technology and criminal procedure and likely to pique [Supreme Court] interest,” Tobias said. “It may be a litmus test for the court.”
Biden may have an opportunity to fill a significant number of 4th Circuit vacancies. Eight of the 15 judges are at least 65 and have served 15 years or more, making them eligible for senior status.
“I think the Biden administration could have a very significant impact on the future of the 4th Circuit in light of potential vacancies,” Walsh said. “”If you’re challenging the Biden administration, there would be other places a conservative would want to go.”