How Big a Mark Will President Biden Make on the Federal Judiciary?

The eleventh wave in judicial nominations was announced by President Biden last week. Biden made 73% more nominations for judicial office in his first year than Donald Trump (73). It is not hard to imagine that someone from the White House did this.

It is impressive that the Senate has a track record of confirming President Biden’s judicial nominees. The Senate approved the forty-eighth of Biden’s nominees for judicial office. One-hundred and nine of the nominees were confirmed by circuit courts of appels. Twenty-nine of them were also confirmed by federal district courts. In comparison, only 18 of Donald Trump’s nominees for judicial office were confirmed by the Senate during his first year. This includes Neil Gorsuch, who was elected Associate Justice. Additionally, President Biden’s nominees for judicial office have had a much greater ethnic diversity than President Trump’s.

It is remarkable that this record of confirmation and nomination has been maintained. But, will it last? In four years, will President Biden be able to have as much impact on federal judiciary as Donald Trump did? Not so much.

Trump appointed 54 judges to circuit courts and 174 judges to district courts during his first term. He also appointed three Supreme Court justices. Except for the possibility of creating additional federal benches (which might be justifiable in some areas of the country), Biden won’t be able to match Trump, especially on the circuit courts. In particular, he will struggle to meet Trump’s numbers, especially if Republicans gain control of Congress in 2023. The White House will not be able to focus on potential nominees for lower courts if the Supreme Court has a vacancy in 2019, as most believe.

Let’s concentrate on the circuit courts. Biden has already appointed eleven circuit judges of appeal. Five additional nominees for circuit courts are also before the Senate. This brings us up to 16.

Currently, three court vacancies are open (including the Tenth Circuit’s that have been vacant since March without a nominee) and 11 future vacancies announced without any identified nominees. The Circuit was first announced in February.  If Biden is able to fill every vacancy, we would be at 30. (31/31 if you count Sixth Circuit Judge Guy Cole who, according to news reports, is expected to be promoted to senior status.

It would be impressive to fill all these seats within the first half of a Presidential term. However, the Administration will need to nominate candidates. (Query: Does interest group conflict prevent a Democratic Administration moving to fill a D.C. As under President Obama, circuit sea?

The availability of additional positions for Biden will also be a factor. Several prominent judges from circuit courts announced this month that they will be assuming senior status when their successors are appointed. These include Dianne Motz (Fourth Circuit), Cole (Seventh Circuit), Dianne Wood, Dianne White (Seventh Circuit), and David Hamilton (Seventh Circuit). Others will follow suit?

According to my counting, there are 14 additional judges that were appointed by Democratic Presidents. These are all eligible to receive senior status. However, they haven’t indicated any intention. Biden must catch up to Trump by taking senior status as soon as possible. (Again, it may be dependent on which party controls Senate that the Senate approves replacements. If any of these judges chooses not to accept senior status before the spring next year, it will either indicate that they intend to stay on the federal bench or they don’t care if a Democratic president has an opportunity to replace them.

There are also vacancies that can be filled by Republican appointees. Nearly a dozen Bush 41 and Reagan appointees are still active on the federal appellate court. All of them are eligible for senior status long ago, but there are fourteen Bush 43 appointees that appear to also be eligible. Many of these judge will retire in the coming year or take up senior status.

While the Trump Administration is ahead of the Biden Administration in nominating federal judges and appointing them, it’s not clear if President Biden will be as influential on the lower courts as President Trump. Biden will need to have enough vacancies, nominated nominees, and an open Senate to confirm. It will all be matter if these three factors are met.