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The Ball Is in the Courts Now | Insight

The appointment of former public defenders to the ranks of the federal judiciary is a welcome change that is unfortunately more important than it should be.

President Joe Biden recently reached a new milestone for his administration: appointing more judges than any other modern president at this point in a term. Thirteen federal judges nominated by Mr. Biden and confirmed by the United States Senate now sit on federal benches.

The most recent appointee is Veronica Rossman, who will take a seat at the 10th Circuit of The U.S. Court of Appeals. Ms. Rossman has spent most of her career as a public defender, providing legal defense for individuals unable to pay for their own. She is not the first of the current administration’s court appointees to have served in this role. Mr. Biden, who served a brief stint in this job himself, has appointed three other former public defenders to the appellate level. These four make up half of the eight total public defenders serving among the 174 appeals court judges.

This, then, is an obvious change of course from usual appointment choices, and it’s a welcome one. Under Donald Trump and Barack Obama’s administrations, these appointees were much more likely to be corporate lawyers or prosecutors than civil rights or defense lawyers, let alone public defenders. The modus operandi for a long time has been that to rise in the judicial branch, you either have to be a high-powered lawyer earning enormous sums litigating mergers, acquisitions, and corporate lawsuits, or a prosecutor who has developed an impeccable record of imprisoning people.

The value in Mr. Biden’s refreshing approach, then, is simple. In a system meant to apply the law equally to all people, it makes some amount of sense to staff the courts with public defenders. These are people who, by and large, have built their lives around the usually low-paying and arduous commitment to the constitutional principle that every citizen is entitled to a fair public trial .

Unfortunately, however, it is not all good news. This “milestone” of the Biden administration is one of only a few achievements since the passage of his COVID relief legislation. Younger Americans may be somewhat used to this idea that the federal government doesn’t do much, but it wasn’t always this way. In fact, it’s irregular in our modern history.

Both houses of Congress and the Executive branch are all controlled by one party, but the past several months have been dominated by negotiation over legislation yet to be enacted and the trading of partisan blows. Mr. Biden’s stimulus bill constitutes his largest achievement thus far, but this was passed using the once-a-year filibuster loophole of budget reconciliation.

The reasons for court appointments being chief among Mr. Biden’s only concrete achievements are simple. First of all, lifetime court appointments—like those being carried out by Mr. Biden and previously by Mr. Trump at such blistering paces—provide a reliable and lasting political legacy. Quite simply, a president has less to worry about regarding the future of his political desires if he can appoint what are effectively partisan scriptural interpreters to serve until they die.

More importantly, judicial appointments are basically the only feasible way to do politics at all at the national level, because it’s basically the only congressional process that isn’t hobbled by the filibuster.

Yes, the political legacy offered by court appointments is material, and the judiciary is going to be important regardless of other considerations. But when no other legislation can really be achieved, because just about any effort that defies unanimous agreement will be stonewalled, judges remain as the only feasible outlet to pursue policy.

Regardless of whether you are conservative or progressive, it should not be a sign of democracy in good health when unelected individuals serving lifetime appointments are the central vehicle through which political goals can be realized.

We at Spectacles are well aware that we’ve been harping on the filibuster lately, but our goal is to help you, the reader, better understand the undercurrents of our politics rather than just the surface-level headline events. In America, we should not only be talking about the filibuster in op-eds about the filibuster. It is impacting every facet of national politics and congressional behavior. It should be treated as such.

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