The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Without a Supreme Court vacancy, judicial nominations are not attracting too much attention, but the Biden Administration has been quite busy working to nominate and appoint progressive judges to the federal bench. Indeed, as Axios reports this morning:
President Biden and the Democratic-controlled Senate have installed more federal judges during the first six months of his presidency than any administration since Richard Nixon's.
Specifically, in his first six months in office Biden made eight appointments to the federal bench (appointments occur after the Senate votes to confirm a nominee). By comparison, Axios notes, Presidents Trump and Bush (41) appointed four in their first six months, and Presidents Obama, bush (43), and Ronald Reagan had not appointed any. Note that Bush (41) was aided by succeeding a President of the same party whose nominees he could re-submit, which makes the Trump and Biden numbers even more notable.
Axios credits White House Chief of Staff Ron Klain for the administration's progress on judges. This makes sense, as Klain is well aware how both the Clinton and Obama Administrations squandered their opportunities to make a greater mark on the federal judiciary by slow-walking the nomination process. (In 2009, I discussed the slow pace of Obama's judicial nominations here and here. Note that at the time the Senate was split 59-41.)
One constraint on the Biden Administration's ability to alter the composition of the federal courts is the (relative) lack of vacancies, particularly as compared to the former President, but this should not be overstated. As of this morning there are over 80 federal judicial vacancies, yet only 22 pending nominees (and two additional nominees for pending vacancies). [The Administrative Office of the U.S. Courts keeps track of vacancy data here.]
It is true that President Trump was able to move quickly on judicial nominations because he inherited a large number of vacancies. Senate Republican Leader Mitch McConnell deserves much of the credit (or blame) for this, but here again it is important not to overstate the case. The Axios story, for instance, notes there were 17 circuit court vacancies "waiting for [Trump] on the day he was sworn in, thanks to confirmation slow-walking during the Obama administration by then-Senate Majority Leader Mitch McConnell (R-Ky.)" This is not quite right.
There were indeed 17 circuit court vacancies when Donald Trump was inaugurated, but Mitch McConnell had little to do with most of them. As of December 21, 2016, there were only 13 circuit court vacancies, only seven of which had pending nominees. The Obama Administration failed to nominate anyone for six of the vacancies (after making zero circuit court nominations in all of 2015), and four others arose after Obama's opportunity to make any nomination had passed. In other words, ten of the seventeen of the vacancies cannot be credited or blamed on McConnell, as it is impossible to "slow-walk" a nomination that was never made.
Another factor that will affect the Biden Administration's ability to shape the federal judiciary is whether judges opt to create vacancies. It is no secret that judges sometimes opt to retire or take senior status with an eye toward who will name their replacement. This explains the slight increase in vacancies between November 2016 and January 2017, as well as the increasing number of vacancies in the first half of 2021. There were 49 judicial vacancies on January 1, and over 80 today.
Interestingly enough, there are a fair number of federal judges on both district and circuit courts who were appointed by Democratic Presidents and are eligible to take senior status, but have neglected to do so. Here in the Sixth Circuit, for example, there are three Clinton appointees who are eligible to take senior status, but who have given no indication of their intention to do so. There's also no word on the intentions of the court's three other liberal judges, who will also become eligible for senior status during President Biden's first term. In other words, Justice Breyer is not the only jurist holding a seat that progressives want President Biden to fill.
Yet another variable may be the number of seats on the federal bench. As I have noted before, there are strong arguments in favor of creating additional seats on some courts to address case backlogs, and the Judicial Conference has requested that Congress authorize several dozen new seats, primarily on district courts.
However many vacancies President Biden ultimately has the opportunity to fill, it is notable that this is the first Democratic Administration in the past thirty years to make judicial nominations a priority. Accordingly, this may be the first Democratic Administration in that time positioned to take full advantage of whatever opportunities emerge.
UPDATE: At Excess of Democracy, Derek Muller suggests that the Biden Administration's decision to forego pre-nomination evaluation by the American Bar Association has helped accelerate the pace of judicial nominations. Some progressive groups also raised concerns that the ABA's standards made it more difficult to put forward nominees with diverse backgrounds, a claim that has some empirical support.
One benefit of pre-nomination ABA review in the Obama Administration was that it gave the White House leverage to push back against Senators who sought to forward less-qualified nominees. [Judicial advisory commissions, such as the one on which I have served here in Ohio, often perform a similar function, particularly when they are bipartisan, as ours has been.] As we also saw in the Trump Administration, those nominees pushed by Senators (especially for district courts) are sometimes selected due to their political connections rather than their judicial qualifications. As it happens, the ABA has given Biden's nominees high marks thus far. It will be interesting to see whether that continues.