The Senate Judiciary Committee advanced another round of President Joe Biden’s judicial nominees to a floor vote as the president is moving to name lower court judges on a par with his predecessor.
Biden has gained confirmation of 144 federal judges, including his Supreme Court nominee Ketanji Brown Jackson.
That’s roughly tied with where Trump was by fall of 2019, his third year in office, said Curt Levey, president of the Committee for Justice. Trump finished out his term having appointed more than 230 lower court judges, in addition to three U.S. Supreme Court justices.
"There is a good chance that Biden will be edging Trump out on lower court judges," Levey told Fox News Digital. "Trump prioritized circuit court judges over district court judges. Biden is a little behind Trump on the circuit court judges."
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Biden made his 38th round of judicial nominations, as the Senate Democratic majority pushes to impact lower courts in the face of Republican appointees holding a 6-3 majority on the Supreme Court. The lower court nominees were a mix of state judges, prosecutors, and public defenders.
A public defender, Richard Federico, was among the judges that advanced in committee on Sept. 28 despite sparking some controversy at his confirmation hearing. Biden nominated Federico to be a judge on the U.S. 10th Circuit Court of Appeals.
During the hearing, Sen. Josh Hawley, R-Mo., questioned Federico about his defense of a Kansas man convicted in a child pornography case in which Federico asked for a 105-month sentence, well below the federal sentencing guidelines range of 210 months to 240 months, or up to 20 years. He ultimately got 13 years.
"You have to make moral judgments as a defense attorney, wouldn’t you agree?" Hawley asked.
Federico answered, "Yes."
Federico has been a lawyer for the Federal Public Defender for the District of Kansas since 2017. Before that, Federico was an assistant federal public defender for the District of Oregon from 2015 to 2017. He has also been a Navy Judge Advocate General officer.
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Hawley followed up: "As his attorney, you can do whatever you want. But you are asking here for a lifetime appointment. So, I think it’s entirely appropriate we ask you about your judgment… Do you think the sentence that you recommended does justice to his victims?"
Federico first responded, "Senator, I could not agree more about the problem."
Hawley kept trying to get him to answer in a more specific, yes, or no, but Federico said, "ultimately it’s the court that decides." As Hawley kept pressing the nominee, Federico answered, "Senator, again, it wasn’t my decision as to his ultimate sentence."
Also in the Sept. 28 meeting, the Judiciary advanced the nomination of Joshua Kolar, a federal magistrate judge in Indiana, to the U.S. 7th Circuit Court of Appeals. But he had bipartisan backing, including from Sen. Todd Young, R-Ind.
While several district court judges are pending confirmation, among those who sparked Republican attention was California Superior Court Judge Eumi Lee–who Biden nominated to be a judge for the U.S. District Court for the Northern District of California.
Sen. John Kennedy, R-La., pressed Lee about her 2010 law review article on gender and prisons.
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"In that article, you argued that male prisoners should be allowed to claim they are transgender in order to be assigned to a female prison, didn’t you?" Kennedy asked.
Lee replied, "That was an article that originated from a symposium, which I just moderated the panel, and then summarized for the symposium edition the different arguments and issues that were raised."
Lee was a law professor at the University of California College of Law, San Francisco from 2005 to 2018.
"Do you think that a male prisoner convicted in a court of law, final judgment, should be allowed to claim that he is transgender in order to be assigned to a female prison?" Kennedy asked.
Lee replied, "The issue of assigned facilities and such, is one that is being actively litigated in California and may come before me."
Kennedy shot back, "Now all of a sudden you can’t answer. You answered it in your law review article."
Kennedy went on to point out that Lee was one of the founders of the Gender and Sexuality Law Journal at Georgetown University. Lee was a 1999 graduate of Georgetown University Law Center.
Past cases or writings are less of a problem than the Biden administration’s criteria for selection of judges, said Levey of the Committee for Justice. He said Biden has prioritized diversity and backgrounds in liberal activism over other important qualifications.
"I’m more concerned about Biden appointing open activists to the bench," Levey said. "Past Democratic presidents appointed typical Democrats to the bench who were lower court judges or law professors. Biden has appointed activists who have worked for the ACLU, the NAACP, the Brennan Center, and other groups."
