The nomination of U.S. District Judge Raúl Arias-Marxuach to the First U.S. Circuit Court of Appeals quietly came to an end late last week. President Biden pulled Arias-Marxuach’s nomination without explanation. The decision is a curious one.
President Trump nominated Judge Arias-Marxuach on October 26 to fill a vacancy on the First U.S. Circuit Court of Appeals due to the death of Judge Juan Torruella. The late date of the nomination meant that Trump ran out of time to get Arias-Marxuach to the floor of the Senate for a vote before Trump left office. The Trump administration hoped that Biden would extend the courtesy of re-nominating the judge, given his excellent qualifications and history of bi-partisan support. Nope. President Unity yanked the nomination and never looked back.
Shades of the Miguel Estrada saga come to mind. Remember Miguel Estrada from the George W. Bush administration? W. nominated him for the Washington, D.C., federal appeals court, and Democrats in the Senate refused to confirm him. At the time, Estrada was on the fast track in his judicial career and his name was mentioned as a possible future Supreme Court nominee. The Democrats were determined to not allow a conservative judge to become the first Hispanic judge on the Supreme Court – Democrats wanted to check that box. Ever since then, conservatives have held a grudge over Estrada’s treatment, and rightly so. There was no reason to deny him that appointment other than petty identity politics by the Democrats in the Senate.
“President Joe Biden just yanked the nomination of a Hispanic federal judge with stellar qualifications,” Article III Project president Mike Davis told the Washington Free Beacon. “Democrats claim they want more diversity on the federal bench, yet they have largely voted against women and minority judicial nominees put forward by Republican presidents going back to Clarence Thomas.”
“This is yet another example of President Biden’s willingness is to carry water for left-wing dark money groups and their agendas,” added Judicial Crisis Network president Carrie Severino.
Judge Arias-Marxuach is currently a federal trial judge in Puerto Rico. He was confirmed to that position in May 2019. Trump nominated him for the First Circuit after the death of Judge Juan Torruella, the first Hispanic judge on the First Circuit. Arias-Marxuach would have been the second Hispanic judge on the First Circuit. The First Circuit covers New England and Puerto Rico. Judge Juan Torruella was 87 years old at the time of his death and served on the First Circuit since 1984. He was nominated by President Reagan.
There is no arguing that Trump had a significant impact on most of the federal courts of appeals. He had not yet had the opportunity to appoint any judges to the U.S. Court of Appeals for the First Circuit until Torruella’s death. The court leans liberal and Obama appointed three judges to the First Circuit. Now it looks like Democrats are protecting their territory. Sometimes when judicial nominees are left pending when one administration leaves office, the incoming administration will renominate the nominees and move forward. For example, the Senate confirmed 15 Obama-era judicial nominees under Trump. It is quite telling that President Unity is not willing to extend the same courtesy for this nominee.
By all accounts, Arias-Marxuach is well-qualified. The Senate confirmed Arias-Marxuach by a 95-3 vote on May 2, 2019, which was a huge victory given the bitter partisanship in the Senate at that stage of the Trump administration. It was an affirmation that both sides of the aisle recognized his qualifications. He has limited experience in the political arena, which should be a plus for him in today’s political environment.
Arias-Marxuach has limited political experience, having worked as a volunteer attorney for the campaign of Governor Luis Fortuno in 2008 (Fortuno caucused with the GOP as a resident commissioner in Washington). He also served as a member of the Republican National Lawyers Association.
Time ran out for this nomination. He was given a hearing by Senator Lindsey Graham in the Senate Judiciary Committee on December 16 but didn’t make it to a full vote on the Senate floor in time. By holding the committee hearing, Graham hoped to raise Arias-Marxuach’s profile enough to warrant being held for renomination. “Having a hearing here will make the case that this would be an outstanding nominee by any president,” Graham said. That didn’t happen.
No President since Jimmy Carter has seen lame-duck confirmations to the court of appeals. Democrats are still pissed off that Trump (and McConnell) were able to get 13 judges confirmed in the last days of Trump’s presidency. University of Richmond law professor Carl Tobias, a judicial selection expert, points to the unusual circumstances of so many confirmations during a lame-duck session in the Senate.
“You really have to go way back in history to find another example of that,” Tobias told the Free Beacon. “In recent history, there hasn’t been anything like that number of lame-duck confirmees.”
So much for Biden working with Republicans, right? This would have been a no-brainer for him to score some points with Senate Republicans yet he chose to go with petty partisan politics. So far, Team Biden hasn’t announced its first wave of judicial nominations.