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Top One Magazine

How a 1990 law Biden helped pass gives us a clue about his SCOTUS pick

Three decades ago, then-Senate Judiciary Chair Joe Biden crafted a law making the speed of federal judges’ work on civil cases more transparent. Now that President Biden’s picking a Supreme Court nominee, that work may prove newly relevant.

With the aid of his then-chief counsel and current chief of staff Ron Klain, Biden wrote a 1990 law that ended up having a “peer pressure” effect, as described by one judge at the time, by encouraging federal judges to speed up their work and clear their dockets. Dubbed the Civil Justice Reform Act, the proposal required judges to divulge several metrics about how many motions in civil cases remain pending after six months and how many cases are pending after three years.

To this day, the semi-annual disclosures required by the law are so closely associated with the former Delaware senator that they are still sometimes referred to as the “Biden reports.”

The spirit of the law demonstrated Biden’s preference to see judges work quickly, as well as his belief that transparency would reduce delays that can leave defendants sitting in legal limbo and lead to higher court costs. If that preference still applies today, it could reflect more positively on one of his Supreme Court nominee prospects in particular — South Carolina District Court Judge J. Michelle Childs, whose “Biden report” plate is far cleaner than former D.C. District Court Judge Ketanji Brown Jackson’s.

Biden is expected to name his high court nominee in the coming days, after setting an end-of-February deadline. Senators are anticipating he will pick between Childs, Jackson and Leondra Kruger, a California Supreme Court justice whose work wasn’t covered by the 1990 law.

Democratic Senate leaders are aiming to confirm Biden’s nominee by Easter, a deadline that requires the president to make his pick imminently. Many believe Biden is leaning toward Jackson, who is now a judge on the D.C. Circuit Court of Appeals, but the White House has been tight-lipped about the president’s evaluation process.

Between the time Jackson was confirmed in 2013 and when she was elevated to the D.C. Circuit in 2021, she had far more civil motions listed as pending than Childs, as well as cases that had been open for more than three years.

All told, the data compiled in the semi-annual reports show that from September 2013 to March 2021, Jackson had an average of 12 motions pending for more than six months and an average of 11 civil cases pending for more than three years.

Childs, over the same eight-year period, had an average of zero motions pending for more than six months and an average of two civil cases pending for more than three years.

“The President thinks they are both excellent trial judges, which is why he chose to nominate each of them to the D.C. Court of Appeals,” said White House spokesperson Andrew Bates.

The numbers don’t always reflect the complexity of the underlying cases, which can differ significantly between South Carolina and D.C., and, in turn, require more time to complete. Judges on the district court in D.C. have a wide range of pending civil motions and cases, with some tallying several dozen pending motions over six months and others having very few.

In a March 2017 semi-annual report, which found Jackson had 20 motions pending for more than six months, she repeatedly cited the complexity of the cases before her. Jackson’s case statistics also appear on par with her fellow D.C. district court judges, some of whom also had more than a dozen motions pending for more than six months in multiple reports.

Both D.C. and South Carolina courts are similarly busy, though D.C. sees more administrative law cases. And the Supreme Court, notably, considers far fewer cases than lower courts.

Jackson and Childs also have more bench experience than a number of current Supreme Court justices had when they were confirmed to the high court. Jackson served more than eight years as a D.C. trial judge, and Childs has served roughly 12 years on the South Carolina district court.

Yet that their disparity in numbers exists at all is because of Biden, who was seeking to make it easier to determine which judges were sitting on civil cases in an otherwise opaque federal court universe.

Many federal judges opposed Biden’s legislative effort at the time, arguing it would add more paperwork to judges’ loads and was an effort to shift blame from individual judges onto the entire federal court system, according to a New York Times account. In a 1992 article written for the Cornell Journal of Law and Public Policy, Biden cited a judge from the Eastern District of Washington who credited the new reporting requirement for a “substantial increase” in completed cases in their district.

In the same article, Biden defended the metric he’d helped create by citing the 1990 testimony of a 56-year-old man injured by a defective product. The man was seeking damages and recovery for medical bills, and his case had been languishing for four years as costs piled up.

“It is sad but true that the courthouse door is rapidly being slammed shut for the middle class of this country,” Biden wrote at the time. “Once available to everyone, access to the courts has become an unaffordable luxury, even for middle-class Americans.”

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