The Morning Dispatch: Biden’s Fast Judicial Start

Happy Wednesday! The Milwaukee fans on staff were going to stage a mutiny if we didn’t acknowledge that the Brewers have won seven games in a row and are five games ahead of the Cubs in the NL Central, so this is us acknowledging that the Brewers have won seven games in a row and are five games ahead of the Cubs in the NL Central.

Quick Hits: Today’s Top Stories

• A U.S. base in northeast Syria was attacked by “multiple rockets” on Monday—hours after the United States conducted a series of airstrikes in the region—according to Col. Wayne Marotto, a spokesperson for Operation Inherent Resolve. Marotto said American forces responded with “counter-battery fire at rocket launching positions and on Hellfire from a UAV which resulted in one enemy wounded in action.” There were no casualties on the U.S. side.

• South Africa’s Constitutional Court served former President Jacob Zuma with a 15-month prison sentence on Tuesday for contempt of court after Zuma refused to appear before a government-appointed commission looking into corruption that allegedly took place during his presidency. Zuma—who now has five days to turn himself in—is accused of awarding inflated government contracts to individuals and companies in exchange for favors.

• New Israeli foreign minister Yair Lapid inaugurated the country’s embassy in the United Arab Emirates on Tuesday, marking an Israeli cabinet minister’s first trip to the UAE since the two countries normalized relations last fall. “Israel wants peace with all its neighbors,” Lapid said. “We aren’t going anywhere. The Middle East is our home.”

• A massive heat wave is sweeping the Pacific Northwest, with temperatures in Washington and Oregon reaching as high as 115 degrees Fahrenheit, causing some roads to buckle and power cables to melt. BuzzFeed News reports that more than 1,100 people have been hospitalized in recent days with heat-related illnesses.

• The counting of the vote in New York City’s mayoral Democratic primary descended into chaos on Tuesday after the city’s board of elections announced it had accidentally tabulated 135,000 sample ballots that had been used to test voting software from official systems. 

• The Supreme Court on Tuesday denied a request from the Alabama Association of Realtors to overturn the Centers for Disease Control’s eviction moratorium, which was recently extended through the end of July. Chief Justice John Roberts and Justice Brett Kavanaugh joined the three Democratic-appointed justices in voting to uphold the moratorium. Kavanaugh wrote that while he agrees the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” letting the moratorium expire July 31 as planned will allow for an “orderly distribution of the congressionally appropriated rental assistance funds.”

• The United States confirmed 11,306 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 1.4 percent of the 804,579 tests reported coming back positive. An additional 322 deaths were attributed to the virus on Tuesday, bringing the pandemic’s American death toll to 604,436. According to the CDC, 11,837 Americans are currently hospitalized with COVID-19. Meanwhile, 738,476 COVID-19 vaccine doses were administered yesterday, with 179,940,202 Americans having now received at least one dose.

A New Slate of Judges

Last Thursday, the Biden administration succeeded in confirming its seventh federal judge: Candace Jackson-Akiwumi, a nominee to the 7th Circuit court of Appeals. While seven confirmations may not seem like a lot, this is actually the fastest rate at which a president has filled judicial vacancies since Richard Nixon.

At this point in their respective presidencies, Donald Trump had confirmed two lifetime federal judges (one of whom was Supreme Court nominee Neil Gorsuch), Obama zero, George W. Bush zero, Bill Clinton zero, George H.W. Bush four, Ronald Reagan zero, and Jimmy Carter four.

And Biden isn’t slowing down. CNN’s Phil Mattingly reported this morning that Biden is preparing to announce the nominations of another wave of federal judges today, including two circuit court nominees. 

The Biden administration’s efforts to rapidly fill judicial vacancies reflect increased pressure from left-wing legal advocacy groups to respond to Republicans’ organizing efforts around the judiciary. Trump filled 234 lifetime federal court seats during his single term in office, a faster pace than that set by Obama, Bush, or Clinton. Under the leadership of then-Majority Leader Mitch McConnell, the Senate moved quickly to approve many of Trump’s appointees. As of January 2021, 28 percent of active federal judges were chosen by Trump.

But in a speech last week on the Senate floor, Majority Leader Chuck Schumer got his revenge. “For all the focus that the Republican leader put on judges during the previous administration, the Senate only confirmed one—one district or circuit judge—before July 4 in the first year of Donald Trump’s presidency,” he said. “With the confirmations this week, the Senate will have confirmed more district and circuit court judges to the federal bench in the first six months of President Biden’s first year than any other administration in 50 years.”

Jonathan Adler, a law professor at Case Western Reserve University, told The Dispatch that Democrats have learned from experience the importance of having a queue of judicial nominees at the ready. 

“If you want to get judges confirmed, you have to fill the pipeline,” Adler said. “One way to create pressure for confirmation is to have there be a lot of people waiting. Just nominating a few, and then waiting around for them to get confirmed before nominating the next batch—well, then the pressure never really builds. And I think there’s a recognition that the Obama administration made a mistake by not filling up the queue as much as possible. … That was something the Trump administration did, and they’re learning from that.”

Biden has focused on racial and gender diversity in his nominee selection. While the vast majority of Trump’s appointees were white, none of the seven Biden nominees confirmed thus far are—and most of his appointees awaiting Senate confirmation are either black, Latino, or Asian. His pick for the U.S. Court of the District of New Jersey, confirmed in June, was the first lifetime-appointed Muslim federal judge. Toward the end of the 2020 Democratic primary, Biden pledged to nominate a black woman to the Supreme Court; three of his nominees fitting that description have already been confirmed as district or appellate judges.

But Biden’s nominees may not always satisfy the progressive base of the Democratic Party on ideological grounds. While Demand Justice—a liberal judicial activism group—hailed some of Biden’s early nominees as “terrific,” it has expressed disappointment with others. 

Regina Rodriguez—whom the Senate confirmed in June to the U.S. District Court for the District of Colorado—faced criticism over her background in corporate law. “Old habits die hard for some senators who are used to recommending corporate lawyers and prosecutors for federal judgeships,” Brian Fallon, executive director of Demand Justice, said in a statement.

Even if Biden’s nominees are not unilaterally progressive—at least by the standards of hyper-progressive groups—they will still play a role in reshaping the judiciary and protecting the administration’s future legislative accomplishments. “For the Trump administration,” Adler explained, “the hope was that judicial nominations would help defend administrative actions that were part of their agenda—that is, provide a shield, more than a sword.”

“I think there’s an element of that for the Biden administration,” he continued. “There’s a belief that in some cases having some sympathetic judges on the courts will help ensure that governmental actions—in particular regulatory actions, agency actions—survive challenge.”

There are currently 78 Article III vacancies in the federal courts—openings which, when filled, will allow judges to serve for life. But while Biden is already making his mark on lower courts, the ideological composition of the nation’s highest court is unlikely to change anytime soon. During the course of his presidency, Trump succeeded in filling three Supreme Court vacancies, the first of which was held open for more than a year by Mitch McConnell and Senate Republicans.

Now, the Biden administration faces pressure to implement judicial reforms—changes such as imposing term limits or expanding the size of the Supreme Court. While Biden deflected questions about court packing during last fall’s campaign, in April he announced a commission to investigate potential changes to the judiciary. The commission will not announce its report for months, but some congressional Democrats have already unveiled legislation to increase the size of the Supreme Court to 13 justices.

“Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Sen. Ed Markey said at the time. “This legislation will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.” (House Speaker Nancy Pelosi says she has “no plans” to bring the bill to the floor for a vote.)

Even if Biden rejects calls for court packing, progressive activists are hoping he may get the chance to appoint a replacement for Justice Stephen Breyer. Breyer, 82, has thus far resisted calls for his resignation, arguing in a recent Harvard speech that he doesn’t want the court to descend into rank partisanship. “If the public sees judges as politicians in robes,” he argued, “its confidence in the courts—and in the rule of law itself—can only diminish, diminishing the court’s power.”

But if Breyer does step down at the end of this term or the next, Biden’s early nomination spree will have provided him plenty of potential replacements to choose from. Ketanji Brown Jackson—who was just confirmed to the D.C. Circuit Court of Appeals—is likely already on the Supreme Court shortlist.

But politics is about prioritization, and Supreme Court fights can slow down lower court nominations. “Certainly, in the Obama administration, this is what happened,” Adler said. “There are other areas where the Biden administration has been surprisingly slow to make nominations—solicitor general is the most obvious example—and one does wonder if a Supreme Court vacancy would get in the way of continuing to name and push forward other judicial nominees.”

Out With the Old, In With the New

It’s been a busy week for Israel’s new government. Prime Minister Naftali Bennett, head of the right-wing Yamina party, spoke with Egyptian President Abdel Fattah El-Sisi Monday for the first time since taking office. Israeli Foreign Minister Yair Lapid, who organized the successful effort to oust former Prime Minister Benjamin Netanyahu, traveled to the United Arab Emirates to christen the Gulf’s first Israeli Embassy.

Meanwhile, outgoing Israeli President Reuven Rivlin visited Washington, D.C., this week to bid his American counterpart adieu. In an Oval Office reunion reported to have exceeded its designated time slot, Biden examined the future of Jerusalem with one of the most respected voices of its past. 

According to a White House readout of the meeting, the two touched on subjects including humanitarian aid to the Palestinians, efforts to secure a “lasting peace” with West Bank and Gaza Strip leadership, and concerns over Iranian nuclear proliferation and support for regional terror. “The leaders discussed the importance of enhancing efforts to strengthen moderate voices and promote the cause of coexistence while weakening extremists who advocate for hatred and violence,” the statement read.

“Iran will never get a nuclear weapon on my watch,” President Biden declared Monday, affirming important common ground with Israel. But per reports following the meeting, the two leaders remain far apart in their visions for maintaining their shared goal.

As American envoys ready themselves for another round of indirect negotiations with Tehran in Vienna—even against the backdrop of fire exchanged between the U.S. and Iran-backed militias in Syria and Iraq—the Biden administration appears poised to revive the 2015 Joint Comprehensive Plan of Action (JCPOA) by summer’s end. Some reports indicate that negotiators hope to secure a new deal before Ebrahim Raisi—Iran’s president-elect and an anti-West hardliner—takes office.

Israel—which vocally opposed the JCPOA in 2015 and has not changed its stance even with a new governing coalition—maintains that granting Tehran sanctions relief in exchange for a deal would only fuel regional terror. According to the readout, Biden “assured President Rivlin that the United States remains determined to counter Iran’s malign activity and support for terrorist proxies.” 

Rivlin also reportedly brought to Biden’s attention Qatar’s funding of Iran’s Islamic Revolutionary Guard Corps (IRGC)—an alarming allegation, but one with some degree of credibility given Doha’s documented support of terrorist organizations including Hamas, the Taliban, and al-Qaeda. 

“The implications for the United States are fairly straightforward. Our largest air base in the Middle East is in Qatar. It’s the Al-Udeid air base. It’s where we conduct a huge number of counterterrorism operations,” Jonathan Schanzer, senior vice president of the Foundation for Defense of Democracies, told The Dispatch. “The notion that we might be striking at groups that are funded by the country hosting the base is a rather jarring one. We can only hope that this is being addressed at the highest levels between the two countries.”

Worth Your Time

• Writing in The Atlantic, James Jeffrey and Dennis Ross argue that pretty much any conflict plaguing the Middle East nowadays can be traced back to Iran’s “destabilizing role in the region.” The pair anticipate a return to the Iran nuclear deal in some form this year, but argue that far more needs to be done to contain the threat Iran poses to the region. “Although we are convinced of the value of containing Iran’s nuclear program, that is not enough. The administration will also need to counter what will almost certainly be Iran’s escalating efforts in the region: With the sanctions relief that will result from returning to compliance with the JCPOA, Tehran’s troublemaking resources will increase,” they write. 

• New York Times economics correspondent Neil Irwin is out with an important piece for understanding the post-pandemic economy: Markets work, but it’ll take time for global supply chains to reach their new equilibrium. “Decisions made early in the pandemic are having long-lasting consequences in fulfilling demand that is surging with Americans’ loaded wallets,” he writes. “Now, there are higher prices for base materials like steel and aluminum. There are suppliers being forced to raise wages sharply to keep assembly lines operating. There are semiconductor manufacturers stretched too thin to provide enough computer chips to make as many cars as consumers wish to buy. There have even been shortages of resin, needed in the plastics that are part of a car, caused by Texas winter storms this year. And adding to it all, there are logjams of shipping capacity for materials imported from overseas.”

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Toeing the Company Line

• Haley is going to be taking a few months off her congressional reporting, but never fear—Uphill is in good hands. In yesterday’s edition, Harvest and Ryan gauge Congress’ openness to a global minimum tax and dive into House Republicans’ moves on climate policy. 

• David took a look at the latest Supreme Court term in Tuesday’s French Press(🔒), arguing that the body has been “an island of classical liberal calm in the midst of a raging partisan and populist storm.” Even in cases touching explosive cultural issues, Supreme Court majorities, he writes, have successfully navigated a middle path. “They have extended nondiscrimination protections in secular spaces, blocked targeted discrimination against people of faith, and expanded the autonomy and liberty of religious organizations.”

• In yesterday’s Sweep, Sarah offered silver linings for both Democrats and Republicans as we head into midterm season, and weighed in on the growing descriptive uselessness of the word “conservative.” Stick around for Chris Stirewalt’s take on the politics of infrastructure. “It’s still clear that there are more Democratic incumbents in clear need of a bipartisan win than Republicans,” he concludes.

Let Us Know

Do you think an increased focus on the federal judiciary by administrations of both parties represents a positive or negative trend in American politics? 

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), Tripp Grebe (@tripper_grebe), Emma Rogers (@emw_96), Price St. Clair (@PriceStClair1), Jonathan Chew (@JonathanChew19), and Steve Hayes (@stephenfhayes).