U.S. Magistrate Judge Benjamin Cheeks, a former San Diego prosecutor and defense attorney, is tracking toward becoming one of the last two federal judges appointed by President Joe Biden, though it remains uncertain if he’ll make it across the finish line that is the Senate confirmation needed for the life-tenure position.
Nominated by Biden in October for a U.S. district judge seat in the Southern District of California, Cheeks has become a political pawn in Washington, D.C., where Senate Democrats and Republicans are battling over more than a dozen federal judgeships in the waning days of the Biden administration.
Both Biden and President-elect Donald Trump during his first term made judicial nominations a priority, as federal courts often have the final say on the legality of a president’s policies and the constitutionality of state and federal laws.
During Trump’s first term, he appointed a total of 245 federal judges, including three Supreme Court justices, 54 appeals court judges and 174 district court judges, according to the U.S. Courts. Trump appointed just one judge to the federal bench in the Southern District of California. Biden will likely end his term having appointed about 230 federal judges, including at least six in the San Diego area. Cheeks would be his seventh appointee.
Despite a Republican-led Senate confirming 19 of Trump’s nominees after he lost the 2020 election, Trump recently urged the Senate not to do the same for Biden by confirming his last slate of nominees, including Cheeks.
“The Democrats are trying to stack the courts with radical left judges on their way out the door,” Trump claimed on social media. “Republican senators need to show up and hold the line — no more judges confirmed before inauguration day!”
A few days later, after Senate Republicans promised to try to fulfill Trump’s wishes by stalling and preventing any more confirmations, Senate Democrats and Republicans reached a compromise. The terms of the deal allowed the Senate to confirm at least 12 more district judges without Republican roadblocks but will leave vacant four openings on appellate courts that Trump can fill.
Cheeks was not among the 12 nominees included in the compromise, so Senate Republicans could still try to block his confirmation without reneging on the deal. But with a Democratic majority still in power, his confirmation rests more on whether the Senate has time to push his confirmation through, according to Carl Tobias, the Williams Chair in Law at the University of Richmond School of Law.
“I’m cautiously optimistic,” said Tobias, who tracks federal judge and U.S. attorney appointments. “It’s certainly possible, but whether it’s probable, I can’t say.”
Cheeks and Serena Murillo, a candidate for U.S. district judge in the Los Angeles area, got past a key hurdle just hours before the Senate compromise when they had a hearing in front of the Senate Judiciary Committee. The committee now must approve their nominations and send them to the full Senate for a vote. The Senate is on recess this week for Thanksgiving. But Tobias said that if the Judiciary Committee votes to approve the duo in the first or second week of December, it would give the full Senate enough time to confirm the two judges before going on a final recess. When the Senate returns from that recess, a new Republican majority will take power and would almost certainly vote against the Biden nominees.
There are currently two federal judgeship vacancies in the Southern District of California, which covers San Diego and Imperial counties. The last-minute rush to confirm Cheeks stands in stark contrast to the nominee for the other vacant seat.
San Diego Superior Court Judge Rebecca Kanter was nominated in January but never got a hearing in front of the Senate Judiciary Committee. Her nomination will expire when the new Senate convenes next year.
Neither Kanter nor Sen. Alex Padilla responded to recent questions about why her confirmation process stalled.
“I’m bewildered by it,” Tobias said. “It’s so rare something like that happens … It makes no sense.”
Kanter was a federal prosecutor in San Diego for 16 years before winning a contested election to become a state court judge. Tobias said there was no indication of any red flags in her background.
“The only people who may know what happened are the senators,” Tobias said, referring to Padilla and Laphonza Butler. Each state’s senators are typically responsible for vetting and recommending nominees to the president.
Meanwhile, San Diego U.S. Attorney Tara McGrath, a Biden nominee confirmed by the Senate last year, appears unlikely to resign before Trump takes office.
“The U.S. Attorney is proud to serve this district and will continue in the role as long as she is needed,” spokesperson Kelly Thornton said in a statement Monday.
If history holds, the new Trump administration will request the resignations of McGrath and other Biden-appointed U.S. attorneys shortly after inauguration day. It’s a customary process that occurs for most of the 94 U.S. attorneys across the nation each time a presidential administration from a different party takes office.
Trump’s U.S. attorney in San Diego, Robert Brewer, resigned on the last day of February 2021, about a month after President Joe Biden’s inauguration. Weeks earlier, the Biden administration had requested the resignations of Brewer and all but two Trump-appointed U.S. attorneys.
If McGrath is asked to resign, it will be up to the Trump administration to nominate her replacement and up to the Senate to confirm that nomination.
That could take years, based on recent history.
Former San Diego U.S. Attorney Laura Duffy, an appointee of President Barack Obama, was not sworn in as U.S. attorney until May 2010, about 16 months into his presidency. Brewer took office in January 2019, halfway through Trump’s first term. McGrath was sworn in just a year ago, nearly three full years into Biden’s presidency.
Until Trump’s nominee is in place, the Department of Justice will appoint an acting U.S. attorney to lead the office. In the recent past, that interim position has gone to the first assistant U.S. attorney, the No. 2 person in the office.
Andrew Haden, who had previously served as first assistant before McGrath’s arrival, was elevated back to the No. 2 position in the office earlier this month. His serving as acting U.S. attorney in the event of McGrath’s resignation would appear to make sense, given that he briefly filled the same role last year before McGrath took office. But that will ultimately be the decision of the DOJ and the attorney general, which at the moment is slated to be former Florida Attorney General Pam Bondi.
