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Reshaping the federal judiciary to save civil rights

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Federal Judiciary

This past week, we celebrated a milestone in the fight to take back our courts and secure constitutional rights for everyone.

On Feb. 14, the Senate confirmed Gina Méndez-Miró for the U.S. District Court of Puerto Rico. With that confirmation, the Senate has confirmed more judges at this point in a president’s term than under either of the two previous administrations. The Biden administration has made filling judicial vacancies its priority — and it has kept its promise to have the federal judiciary reflect the make-up of the American people.

The Freedom From Religion Foundation applauds this 100th confirmation, which has brought more diversity and balance to the federal bench. Méndez-Miró will be the first openly LGBTQ American judge to serve on the federal district court in Puerto Rico. Of the 100 newly appointed judges this term, 76 are women, 68 are people of color, 33 are Black, 25 are Black women and 21 are Hispanic. President Biden has also prioritized diversity in experience by selecting more public defenders and civil rights attorneys to the federal bench.

Why are Biden’s judicial appointments so momentous? FFRF released a report in 2020 about the impact of the Trump administration on the federal judiciary. To recap, President Trump appointed over 200 judges in four years — the largest number of federal appeals court judges appointed in one term. Included in that total were, of course, three appointments to the U.S. Supreme Court, the most since President Reagan. The profile of these judges, who are appointed for life, is largely white, male, young, less experienced and with a demonstrated commitment to promoting Christian nationalism.

The impact of Trump’s appointments is clear: They’ve reshaped our federal judiciary and shifted our courts to an extremism threatening the civil rights of all Americans. To be fair, the Supreme Court has been chipping away at the wall of separation since I started at FFRF in 2008, and even decades before. But last summer the court did the unthinkable by reversing Roe v. Wade in the same week it demanded taxpayer money must go to religious education. Just a few days later, the court would take aim at the religious liberty rights of students when it upheld the prayerful practices of a high school football coach. In that same decision, it abandoned the longstanding test used by courts to evaluate Establishment Clause cases by permanently shelving the Lemon test and replacing it with a “history and tradition” test that promises to allow judges to cherry-pick facts to the benefit of Christian litigants.

And it’s not over yet. This summer the high court is poised to allow further exemptions for Christian plaintiffs looking to discriminate against same-sex couples, and to broaden rights of certain religions to seek accommodations in the workplace that plaintiffs of minority faiths or no faith at all would likely not be able to secure.

The dramatic shift in the court’s ideology is out of touch with the views of the majority of Americans. The federal bench has been captured, in fact, by Christian nationalists.

The only antidote for what’s happening to our courts is court reform and expansion. FFRF has long supported efforts to increase the number of justices on the Supreme Court, and in the lower federal branches where they are desperately needed, as well as legislation that would require the Supreme Court to adopt a judicial code of ethics.

And while the Biden administration has brought more diversity to the bench, atheists are still drastically underrepresented in the judiciary, given that almost a third of U.S. adults identify as atheists, agnostics or “nothing in particular.” To better represent the fastest-growing “religious” identity in America and bring this closer into balance, Biden should strongly consider filling many of the remaining vacancies with nonreligious nominees.

While this week saw this significant milestone in taking back our courts, there are still over 60 judicial vacancies for Biden to fill. These vacancies, unfortunately, are not enough to result in this administration outpacing the damage Trump and McConnell did, which is why court reform and expansion is still critical to our fight. We will continue to see minority rule in our federal judiciary.

That’s why FFRF will continue to work with its coalition partners to advocate for an independent judiciary that reflects the true face of America, and urge the Biden administration to appoint judges who will uphold the constitutional principle of separation between church and state.

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