Democrats in the U.S. Senate don’t appear to have the votes to confirm New Jersey’s Adeel Mangi to the U.S. Court of Appeals for the Third Circuit, presenting President Joe Biden with a difficult political – and moral – dilemma: does he stick with his nominee out of principle in repudiation of the Islamophobic campaign against him, or does he switch nominees to avoid losing a pivotal Circuit Court seat?
Biden and Senate Democrats are left with an extraordinarily narrow window to either confirm Mangi or change course and nominate and confirm a new candidate before the Senate breaks in late summer and the focus shifts to election season.
The Third Circuit, which covers New Jersey, Delaware, and Pennsylvania, is one of the country’s most evenly divided federal courts; it has seven judges nominated by Republicans (Trump and George W. Bush) and six named by Democrats (Biden and Barack Obama). If Biden gets Mangi or a different nominee confirmed, the court would become ideologically tied, but if Biden misses the window and then loses to Donald Trump in November, Trump could choose a conservative who might occupy the seat for decades.
Mangi, who would be the first Muslim to ever serve on a federal appellate court, was nominated to replace Judge Joseph Greenaway last year, and quickly came under harsh scrutiny from Republican senators. At two successive Judiciary Committee hearings, the Pakistani-born Mangi was questioned incessantly over his association with a controversial group at Rutgers and his personal views on antisemitism and the Israel-Palestine conflict.
Democrats have condemned Republicans’ line of attack as Islamophobic, as have Jewish groups like the Anti-Defamation League, which called Republicans’ actions “inappropriate and prejudicial.” But the attacks seem to have spooked enough Senate Democrats to have put Mangi’s nomination in serious jeopardy.
New Jersey Senator Cory Booker, Mangi’s chief advocate in the Senate, said that he is still working to promote Mangi to his colleagues as a currently exceptional man and a potentially exceptional jurist.
“I don’t want to talk about the votes, I want to talk about the man,” Booker told the New Jersey Globe yesterday. “The man is extraordinary. None of the charges against him hold water under independent scrutiny… I’m grateful that the White House, Senate leadership, and others are trying to force people to look at the facts, and not the attempt to smear him.”
Asked whether there was a point at which the White House should consider switching to a different nominee who might be more easily confirmed, Booker demurred.
“I’m focused on confirming this particular individual,” Booker said. “That’s where our focus is.”
But several of his fellow Senate Democrats don’t seem like they’re on board.
One of them, Senator Catherine Cortez Masto (D-Nevada), specifically said on Tuesday that she would not support Mangi. Cortez Masto, notably, is not among the Democratic senators who most frequently breaks with her party; without her, Senate Democrats can’t afford a single other defection.
Others have declined to say how they stand on the nomination. Senator Joe Manchin (D-West Virginia), the Senate’s most moderate Democrat – and a “no” vote on a different New Jersey judicial nominee just yesterday – didn’t betray his thoughts in a brief interview with the New Jersey Globe.
“Wait until it happens,” Manchin said of the vote. Manchin has also said he doesn’t plan on voting for any judicial nominees that lack Republican support, which likely applies to Mangi.
A conservative outside group, the Judicial Crisis Network, has run digital ads trying to convince two swing-seat Democrats, Senators Jon Tester (D-Montana) and Bob Casey Jr. (D-Pennsylvania), to oppose his nomination. In an interview with Politico on Tuesday, Tester said that he had “not developed a position yet” on Mangi.
Further complicating the confirmation process is the indictment of New Jersey Senator Bob Menendez, a strong supporter of Mangi, on federal corruption charges. Menendez’s criminal trial is set to begin in New York on May 6, which could put Democrats down another seat for much of the spring and leave them with a bare 50-49 majority.
Senator Dick Durbin (D-Illinois), the chairman of the Senate Judiciary Committee, did not lay out a timeline for Mangi’s confirmation when asked yesterday.
“There was no plan to call him this week anyway,” Durbin said. “There’ll be some conversation.” (The Senate is departing at the end of this week for a two-week recess.)
Republicans, of course, have plenty of incentive to keep Mangi’s seat open in the hopes that they might get a president of their own party to fill it instead. Senator Lindsey Graham (R-South Carolina), the Judiciary Committee’s ranking member, released a statement yesterday calling for Biden to withdraw Mangi from consideration.
“It has been a long-standing position of mine to give great deference to executive appointments, particularly judicial appointments, for both parties,” Graham said. “However, it is clear to me that concerns about this nomination are widespread, not just among Republicans in the Senate. I urge President Biden to seriously listen to these concerns and withdraw Mr. Mangi’s nomination.”
All of that paints a grim picture for Mangi, but there could also be political pitfalls for Biden in scuttling his nomination. Progressive and Muslim groups have grown invested in seeing Mangi reach the Third Circuit, and not sufficiently defending Mangi from the Islamophobic campaign against him could be seen as a betrayal.
“What [Mangi is] facing is pretty vile and, frankly, diminishes the integrity of the process,” said Amol Sinha, the executive director of the American Civil Liberties Union of New Jersey. “Sadly, some Senate Dems may be falling for it.”
In an election year where Muslim voters in critical states like Michigan are already wary of Biden over his handling of the war in Gaza, Mangi’s nomination carries more political weight. An important internal aspect of the deliberations is whether the White House would ask Mangi to step aside or whether the nominee would bow out on his own.
If the White House does consider switching to a Plan B, it could either turn to some of the finalists from the first round to replace Mangi or look to a broader group of candidates.
U.S. District Court Judge Michael Farbiarz, U.S. Magistrate Judge Jose Almonte, and First Assistant U.S. Attorney Vikas Khanna received strong consideration for Greenaway’s seat last year. So did New Jersey Supreme Court Justice Fabiana Pierre-Louis and New Jersey Solicitor General Jeremy Feigenbaum.
Pierre-Louis, who joined the state’s top court in 2020, asked not to be considered; Feigenbaum, 35, a former law clerk to U.S. Supreme Court Justice Elena Kagan, was viewed as too young by the White House.
Farbiarz, a former Assistant U.S. Attorney for the Southern District of New York and general counsel at the Port Authority of New York and New Jersey, received 65 votes when he was confirmed to the District Court last May, including 15 Republican senators. But Republicans are more circumspect when it comes to Circuit Court nominations.
Booker, for his part, said that he’s frustrated that discussions have even reached this point.
“I’m angry and I’m disappointed that a person of his caliber, his qualifications, should be attacked in the manner that he is,” Booker said. “My heart breaks for his family, having to endure these insults. I’m going to keep working to see him confirmed.”
This story was updated at 11:30 a.m. with more information about Manchin’s stance.