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"While still in charge of the Senate and the White House, we must do all we can to safeguard our democracy," said the senator.
In an op-ed on "the plan to fight back" against the incoming Trump administration, U.S. Sen. Elizabeth Warren on Thursday provided a pep talk to anguished supporters of Vice President Kamala Harris as the nation faces another four years with the far-right MAGA movement at the helm of the government—but she also issued a demand of the Senate before President-elect Donald Trump takes office.
"While still in charge of the Senate and the White House, we must do all we can to safeguard our democracy," wrote the Massachusetts Democrat at Time magazine. "Senate Majority Leader Chuck Schumer must use every minute of the end-of-year legislative session to confirm federal judges and key regulators—none of whom can be removed by the next president."
As Law.comreported on Thursday, there are currently four federal appeals court nominees awaiting Senate floor votes, a nominee for the United States Court of Appeals for the Fourth Circuit awaiting a Senate Judiciary Committee vote following a confirmation hearing in July, and 23 district court nominees awaiting floor or committee votes.
The lame-duck session of Congress will begin November 12 and lawmakers will leave for holiday recess December 20. On January 3, the 119th U.S. Congress will convene, with the Republican Party taking control of the upper chamber.
"Given the outcome of the election, the reality is that we now have a rapidly closing window to confirm well-qualified, fair-minded judges who will protect our rights and serve as one of the last guardrails in upholding our nation's laws and the Constitution," said Maggie Buchanan, managing director of Demand Justice. "Even one judge can make a difference. We don't have a minute to lose."
"With the prospect of more Trump judges on the horizon, this will hopefully create the urgency we've needed all along."
Law.com reported that Schumer (D-N.Y.) has filed for cloture on President Joe Biden's nominations of Judge Jonathan Hawley and former assistant U.S. Attorney April Perry, both of whom were nominated for federal trial courts in Illinois. The Senate will likely vote on the two nominees next week.
"We have always been adamant that the Senate must confirm all of President Biden's nominees and fill every possible vacancy, regardless of who wins the election," said Jake Faleschini, program director for Alliance for Justice, in a statement. "With the prospect of more Trump judges on the horizon, this will hopefully create the urgency we've needed all along."
A spokesperson for Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, told Law.com that Durbin "aims to confirm every possible nominee before the end of this Congress."
At Time, Warren wrote that the Harris campaign and the Biden White House have reached out to working people with pro-labor policies and proposals aimed at reducing prices and holding corporations accountable. But the senator acknowledged that "good economic policies do not erase painful underlying truths about our country."
"Americans do not want a country where political parties each field their own team of billionaires who then squabble over how to divvy up the spoils of government," wrote Warren. "Vice President Harris deserves credit for running an inspiring campaign under unprecedented circumstances. But if Democrats want to earn back the trust of working people and govern again, we need to convince voters we can—and will—unrig the economy."
Before Trump takes office, she added, "to resist Trump's threats to abuse state power against what he calls 'the enemy within,' Pentagon leaders should issue a directive now reiterating that the military's oath is to the Constitution."
Looking ahead to the second Trump administration, Warren advised her party to unite "against Trump's legislative agenda" as it did when the Republicans tried to repeal the Affordable Care Act in 2017.
"Democrats did not have the votes to stop the repeal," wrote the senator. "Nevertheless, we fought on. Patients kept up a relentless rotation of meetings in Congress, activists in wheelchairs performed civil disobedience, and lawmakers used every tactic possible—late night speeches, forums highlighting patient stories, committee reports, and procedural tactics—to draw attention to the Republican repeal effort. This sustained resistance ultimately shifted the politics of health care repeal. The final vote was a squeaker, but Republicans lost and the ACA survived."
"Trump won the election, but more than 67 million people voted for Democrats and they don't expect us to roll over and play dead," wrote Warren. "We will have a peaceful transition of power, followed by a vigorous challenge from the party out of power, because that's how democracy works."
The treatment of the first Muslim federal appellate nominee sends a message to people of Muslim faith with aspirations for the federal bench: don’t bother, unless you, too, want to be branded as a terrorist-sympathizer.
President Joe Biden’s recent nomination of a Harvard-educated litigation partner from a white-shoe law firm to the U.S. Court of Appeals for the Third Circuit should have been pretty run of the mill, as far as judicial confirmation processes go.
But one aspect of the nominee’s bio has contorted what would likely otherwise have been an uneventful confirmation process into a grotesque spectacle: The nominee, Adeel Mangi, is a Muslim American of Pakistani descent. If confirmed, he would be the first Muslim federal appellate judge in the country.
No non-Muslim judicial nominee has been asked whether they condemn the October 7 terrorist attacks by Hamas on Israel, accused of celebrating 9/11, or asked to confirm that they condemn genocide.
It started at his confirmation hearings in December 2023, which his young children attended.
“Do you condemn the atrocities of the Hamas terrorists?” Sen. Ted Cruz (R-Texas) asked. “Is there any justification for those atrocities?”
“Do you believe that Zionist settler colonialism was a provocation that justified Hamas’ atrocity against Jews in Israel?” demanded Sen. Tom Cotton (R-Ark.).
Sen. John Kennedy (R-La.) insinuated that Mangi “celebrate[s] 9/11,” rattling off a list of speakers invited to an event organized by Rutgers Law School’s Center for Security, Race, and Rights to commemorate the 2001 attacks—which Mangi did not attend, had no apparent role in organizing, and, he said, of which he was not even aware. Mangi had been a member of the center’s advisory board.
When Democrats had the floor, they revisited the topic to give Mangi an opportunity to denounce terrorism and genocide—which he did, repeatedly and unequivocally. But even in their friendly form, the questions left an impression that religious and racial stereotypes had hijacked the hearings.
“Is there any hesitation on your part to condemn genocide?" Peter Welch (D-Vt.) asked. “Is there any hesitation on your part to condemn any person who commits terrorist activities in violence toward innocent people?”
As the CEO of the National Council of Jewish Women, Sheila Katz, put it: “It was a heartbreaking scene for the first Muslim American federal circuit judicial nominee to face relentless questioning on Israel, terrorism including September 11, and the Holocaust.”
This treatment is far outside the norm for nominees to the bench. No non-Muslim judicial nominee has been asked whether they condemn the October 7 terrorist attacks by Hamas on Israel, accused of celebrating 9/11, or asked to confirm that they condemn genocide.
Islamophobic questioning is not the only way Mangi’s treatment has departed from the average confirmation process. Republican senators have also given inordinate attention to Mangi’s record of pro bono service. He represented the family of an incarcerated man murdered by a correctional officer and is on the advisory board of Alliance of Families for Justice, a nonprofit that supports families impacted by mass incarceration that has advocated for the release of aging prisoners, including people convicted of killing police officers. The senators used this to say that he has “sympathy for, and association with, some of the most radical elements in society,” including, as Sen. Mitch McConnell (R-Ky.) put it, “those who support cop killers.”
This twisting of Mangi’s pro bono record to paint him as criminal-adjacent is shocking but not surprising. Diverse nominees—including people of color and women—are routinely grilled on their positions on civil rights and criminal justice more intensively than white men nominated to the bench. One study found that nominees of color like Mangi get more than twice as many questions on criminal justice as white nominees. And nominees with experience in public defense—an essential role in our legal system—face particularly brutal questioning. In recent history, these inquiries have increasingly sounded less like questioning and more like badgering of women and people of color about their public interest work, heavy with insinuation that representing marginalized people makes one unfit for the bench.
This is illustrated in the case of Arianna Freeman, a Biden nominee who became the first Black woman to serve on the Third Circuit Court of Appeals. Referring to her 12 years as a public defender, Cruz told her that she had “devoted [her] entire professional career to representing murderers, to representing rapists, representing child molesters.” He branded her a “zealot” for defending a man on death row—whose sentence the Supreme Court later overturned.
And during confirmation hearings for Justice Ketanji Brown Jackson, Sen. Josh Hawley (R-Mo.) said that she had a “long record” of letting child pornography offenders “off the hook,” referring to sentences that experts called mainstream. Republicans also criticized Jackson for representing Guantánamo Bay detainees, referring to her “advocacy for these terrorists.”
With Mangi’s hearings, then, senators are yet again issuing bad faith characterizations of the public interest work of a nominee who would increase the diversity of the federal bench. At this point, even if Mangi’s confirmation goes through—which is increasingly doubtful, as three Democrats have announced in recent weeks that they no longer support him—damage will have been done.
Most fundamentally, the bullying of a prominent Muslim American on the national stage tells all our Muslim friends and neighbors that they are second-class citizens. And it comes at a time when hatred is surging: reports of Islamophobia have doubled in recent months, antisemitism incidents have skyrocketed, and hate crimes in general have surged. So it is more important than ever that we take a strong stand against bias and othering of underrepresented groups.
More specifically, Mangi’s treatment sends a message to people of Muslim faith with aspirations for the federal bench: don’t bother, unless you, too, want to be branded as a terrorist-sympathizer—in front of the world and, as in Mangi’s case, your young children. The potential chilling effect on Muslim Americans vying for federal judgeships undermines the legitimacy and effectiveness of the judiciary.
As my colleagues have previously noted, a diverse bench leads to richer jurisprudence. That’s because judges with underrepresented personal and professional experiences bring important and relevant perspectives to the problems in front of them and push back on assumptions that a homogeneous panel might hold. As Justice Sandra Day O’Connor put it, working with Justice Thurgood Marshall, a civil rights lawyer and the first Black justice, sometimes “change[d] the way [she saw] the world.”
On a more basic level, underrepresented communities are more likely to trust a diverse judiciary. This is important because courts derive their legitimacy from the public’s trust in them. “How can the public have confidence and trust in such an institution if it is segregated—if the communities it is supposed to protect are excluded from its ranks?” federal district court Judge Edward Chen once pondered.
Finally, the negative focus on Mangi’s pro bono record—especially on the heels of other hearings in which nominees have been disparaged for public interest work—casts that work in exactly the wrong light. Pro bono work should not be a political liability. To the contrary, it is the ethical obligation of every attorney to provide legal services to those who cannot afford them. And justice depends on it.
When someone loses a lawsuit, it is frequently not because their claim was meritless, but simply because they did not have a lawyer. In immigration removal hearings, for example, unaccompanied children without lawyers prevail only 15% of the time. By contrast, 73% of unaccompanied children with representation are allowed to remain in this country.
But, according to one study, in a whopping 92% of civil matters—from eviction to police brutality to discrimination—low-income Americans could not find legal representation. Pro bono practice by corporate lawyers like Mangi is crucial to filling the access to justice gap. We should be encouraging pro bono work, not giving talented young attorneys who dream of becoming judges a reason to avoid it.
Mangi’s confirmation process has been a blueprint for how not to treat a nominee for the federal bench. His hearing—and the subsequent campaign against him—has undermined our shared values of equality, inclusivity, and justice. We must do better.
"We urge senators to assess Mr. Mangi's nomination based on his credentials and qualifications for the job, not his religion, race, or ethnicity."
A coalition of over 125 rights groups on Tuesday urged the U.S. Senate to vanquish an onslaught of Islamophobic attacks and confirm Adeel Mangi, who would be the first Muslim American to serve on a federal appeals court.
As some right-wing Democrats consider joining with Republicans to block his nomination to the U.S. Court of Appeals for the 3rd Circuit, the groups explained in a letter to senators that they came together to support the Oxford- and Harvard-educated attorney, "highlight Mr. Mangi's tremendous qualifications, and condemn the baseless and bigoted attacks being waged against this exceptional and historic nominee."
"Mr. Mangi is fair-minded, brilliant, and has shown throughout his impressive legal career a steadfast dedication to equal justice for all, and he will be a tremendous judge on the 3rd Circuit," the coalition wrote of the Pakistani-born partner at Patterson Belknap Webb & Tyler LLP, who appeared before the Senate Judiciary Committee in December.
"History will remember this powerfully important moment for the future of equal justice in America."
Given his "impeccable qualifications" and the historic nature of his nomination, "an outstanding nominee like Adeel Mangi should be celebrated and embraced," the coalition argued. "The anti-Muslim tropes and unfounded assertions against him are the kinds of stereotyping that have long driven Islamophobia, which is on the rise. They also send a dangerous message to communities across the nation and potential future lawyers and judges that their path to the bench and desire to serve our nation will be obstructed by unfounded accusations based solely on their identity."
Since Israel responded to the Hamas-led October 7 attack by launching a U.S.-backed assault on the Gaza Strip that has been widely condemned as genocidal, there have been documented surges in both Islamophobic and antisemitic attacks in the United States. The Council on American-Islamic Relations said Tuesday that it received 8,061 complaints of Islamophobia nationwide last year—the most in CAIR's 30-year history—and they were largely driven by the war.
"Despite the anti-Muslim vitriol Mr. Mangi endured during his confirmation hearing, he repeatedly while under oath condemned antisemitism and terrorism with tremendous decorum and professionalism befitting the temperament sought for these important appointments to the federal bench," notes the letter. "He did so despite facing unfair, unfounded, and hostile questions, many of which were deeply offensive. Further, since his hearing, there has been a coordinated media campaign to amplify baseless attacks on his character."
"We urge senators to assess Mr. Mangi's nomination based on his credentials and qualifications for the job, not his religion, race, or ethnicity. We ask that senators denounce the Islamophobic attacks on Mr. Mangi and on all Muslims," the letter concludes. "History will remember this powerfully important moment for the future of equal justice in America."
Led by the Leadership Conference on Civil and Human Rights, the coalition also includes the American Federation of Teachers, Asian Americans Advancing Justice, Bend the Arc: Jewish Action, Center for Constitutional Rights, Disability Rights Advocates, Earthjustice, Human Rights Campaign, Muslim Advocates, NAACP, National Congress of American Indians, National Homelessness Law Center, Planned Parenthood Federation of America, Presente.org, and Women's March.
Along with several other national organizations, there are state and local groups such as Equality California, Florida Rising, Maine Conservation Voters, Make the Road Nevada, Progress Iowa, Stand Up Alaska, and multiple arms of the NAACP and National Council of Jewish Women.
The White House maintains support for Mangi. Asked about Sens. Catherine Cortez Masto (D-Nev.), Joe Manchin (D-W.Va.), and Jacky Rosen (D-Nev.) opposing him, Press Secretary Karine Jean-Pierre said Monday that "we are doing everything that we can to make sure that he gets through. This Senate should side with qualities that make America exceptional, which Mr. Mangi embodies, not the hateful forces that we're seeing trying to force America into the past."
President Joe Biden's nomination of Mangi was announced on the same day as that of Nicole Berner, who previously worked for Planned Parenthood and the Service Employees International Union before she was confirmed to the 4th Circuit last month.
In a Monday op-ed for The Star-Ledger, Mattan Berner-Kadish—one of Berner's sons with ex-wife Ruti Kadish—wrote: "I am so proud of her and happy that her dream has come to fruition. I am unable, however, to fully celebrate her success."
"What is happening to Adeel Mangi... is a travesty, and when compared to my mother's process, puts in stark relief how incredible this nation can be, and how incredibly cruel it can be as well," Berner-Kadish asserted. "This is a kind, sweet, intelligent man who was thoroughly qualified to be a judge in this country—a judgment confirmed by the American Bar Association, which gave him its highest rating."
"I have no qualms saying that I hope 1,000 more judges like my mother are confirmed around the country. I don't mean lesbians, I don't mean Jews. I mean lawyers who are committed to pursuing public interest careers," he stressed. "I want judges who know what a day of work means for the average American, and how their companies and bosses treat them. I want judges who fought to keep innocent people out of jail. I want judges who worked to protect women's right to control their own bodies. I want judges who did not remove themself or their children from public schools, and know what education looks like for those who attend them. I want our judges to reflect America's diversity and experience."
"For all of those reasons, Adeel Mangi should be a judge right now," Berner-Kadish added. " I don't know if I would agree with all of his rulings, and I doubt he'd be as much of a liberal jurist as I would like. But there is no doubting his qualifications, his professionalism, his fairness, or his judicial temperament. Those aren't the things keeping him off the bench. Racism and Islamophobia are."