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Judicial Nominations

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

The Biden Administration is off to a fast start nominating and appointing federal judges, but will this continue?

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Last week, President Biden announced his eleventh wave of judicial nominations. With the addition of these latest nominees, Biden has made more judicial nominations in his first year in office (73) than did Donald Trump (72). No doubt someone in the White House made sure of this.

The Senate's record at confirming President Biden's judicial nominees has also been impressive. Over the weekend, the Senate confirmed the fortieth of Biden's judicial nominees. Eleven of these nominees were confirmed to circuit courts of appeals, and twenty-nine were confirmed to federal district courts. By comparison, the Senate confirmed only eighteen of Donald Trump's judicial nominees during his first year in office, including Neil Gorsuch to be an Associate Justice. President Biden's judicial nominees have also been far more ethnically diverse than were President Trump's.

This record of nomination and confirmation is impressive, but will it continue? Will President Biden have the same degree of impact on the federal judiciary in four years as did Donald Trump? I am not so sure.

During his one term in office, Trump appointed 54 circuit court judges and 174 district court judges (in addition to three Supreme Court justices). Barring the creation of additional seats on the federal bench (which is likely justified in some parts of the country), it will be hard for Biden to match Trump's numbers, particularly on the circuit courts, particularly if Republicans assume control of the Senate in 2023. (In addition, if there is a Supreme Court vacancy next year, as many expect there will be, that will divert White House attention from processing potential lower court nominees.)

Let us focus on the circuit courts. As noted, Biden has appointed eleven judges to the circuit courts of appeal. An additional five nominees to circuit courts are currently before the Senate. That gets us to sixteen.

At present, there are three circuit court vacancies (including one on the Tenth Circuit that has been open without a nominee since March), and eleven announced future vacancies without identified nominees (including one for the D.C. Circuit that was announced in February).  Assuming Biden gets to fill all of these vacancies, that would get us to 30. (Thirty-one if you include Sixth Circuit Judge Guy Cole, who news reports indicate is going to take senior status too.)

Filling all of these seats in the first-half of a presidential term would be quite impressive, though the Administration will have to put forward nominees to do it. (Query: Is interest group infighting again preventing a Democratic Administration from moving to fill a D.C. Circuit seat as happened under President Obama?)

Another factor will be whether Biden continues to have additional vacancies to fill. Just this month, several prominent circuit court judges announced that they would take senior status upon the appointment of their successors, including Diana Gribbon Motz (Fourth Circuit), Cole, Dianne Wood (Seventh Circuit) and David Hamilton (Seventh Circuit). Will others follow?

By my count there are an additional fourteen judges who were appointed by Democratic Presidents who are currently eligible to take senior status, but have given no indication of their intent to do so. In order for Biden to catch up to Trump, most (if not all) of these judges would have to take senior status in time for the Senate to confirm replacements. (And, again, whether the Senate confirms replacements may depend upon which party controls the Senate.) Insofar as any of these judges opt not to take senior status by early next spring, that will indicate either that they plan to remain on the federal bench for some time, or that they do not care whether a Democratic President has the opportunity to replace them.

Of course, vacancies can come from Republican appointees too. There are nearly a dozen Reagan and Bush 41 appointees still in active service on the federal appellate bench, all of whom are long past eligible to take senior status, and another fourteen Bush 43 appointees who appear to be eligible now too. It is quite likely some of these judges take senior status or retire within the next year.

So while the Biden Administration has outpaced the Trump Administration thus far in nominating and appointing federal judges, it remains to be seen whether President Biden will have as significant an impact on lower courts as did President Trump. To keep the pace, Biden needs vacancies to fill, nominees ready to name, and a Senate willing to confirm. All three of these variables will be matter.

Note: For those interested in keeping track of judicial nominations, the Administrative Office maintains current and historical data on vacancies, nominations and confirmations on this website, with pages focused on current vacancies, and future vacancies.

UPDATE: A Washington Post article posted Sunday evening highlights an additional factor that will make it difficult for the Biden Administration to maintain this pace. The vast majority of judicial nominations and appointments, to date, have been for seats in states with two Democratic Senators. From the Post:

The White House will soon begin confronting serious complications in negotiating with a 50-50 split Senate that still gives deference to home-state senators when it comes to key judgeships put forward by the administration. None of the judges who have been confirmed so far hail from a state with two Republican senators, who because of long-standing Senate customs would be able to effectively veto many Biden judicial nominees they oppose for district court posts.

Interviews with more than a dozen GOP senators with judicial vacancies in their states show varying levels of White House outreach in filling those slots. Some of these Republicans said they were satisfied that the administration sought their feedback, while more conservative members said the president ultimately disregarded their input.

Other Republicans say neither they nor their aides have heard from the White House on current vacancies, and instead have moved forward through their own processes to start collecting names of prospective candidates and hope to hear from administration officials soon.

The Biden nominee to replace Judge Bernice Donald for a Tennessee seat on the U.S. Court of Appeals for the Sixth Circuit, for example, was nominated over the objections of both home-state Senators. The Post also reports there have been ongoing negotiations with home-state over a Kansas vacancy on the Tenth Circuit that has been open since March.

Senate Democrats are unlikely to require blue slips for the confirmation of circuit court judges, as Senate Republicans did not require them for all circuit court seats. This eliminates one potential form of obstruction, at least for circuit court seats. But even without blue slips, it can be more difficult to advance judges without home-state senators pushing for committee action and floor time.

There is no indication blue slips will not be required for district court seats, which makes consultation with home-state Senators that much more important. This is also why most district court nominees made so far have been from states with two Democratic Senators.  The three nominees for the Northern District of Ohio, on the other hand, were recommended by a bipartisan commission (on which I served), but this approach to securing home-state Senator support across party lines is not used in many other states.

 

NEXT: "Breaking an Addiction To False Certainty Is as Hard as Breaking Any Other Addiction"

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  1. Good timing. Today Republicans in the Senate are leaking to the press that they will, as a matter of course, refuse to entertain any nomination Biden makes to the Sup Ct, if R's indeed take control of the Senate in the mid-term elections.

    I much prefer this brand of Republicanism. Much more honest and open. I think that once Whore McConnell made his bed, he has decided to sleep in it openly...infinitely better than any utter bullshit of, "Well, we'll keep an open mind and act on any qualified nominee." Just additional proof now that Justice Breyer is a selfish son of a bitch. Glad to see that one of your main legacies (along with RBG's) will be as a liberal justice who refuses to step down a day early, rather than appear like you were pressured out in any way. Pathetic.

    It's an old saw that You Get The Government You Deserve. Well, Justice Breyer; I guess you're doing your best to ensure that this applies to the Supreme Court as well.

    1. So, you're saying that Breyer should resign so he can spend his final years in contemplation and prayer, like Charles V?

      1. I'm saying that if Breyer wants 3 liberals on the court, and not only 2, he should resign before the upcoming election. Given Whore Mitch's willingness to ram through a Republican nominee, it's probably okay to wait several months....no need for the pretense of a long deliberative process before announcing a nominee by the president, nor the pretense of a long process by the Senate.

        Of course, maybe Sen. Joe Manchin will decide to fuck American Democrats on a SCOTUS nomination, so who knows what that pretend D will end up doing. I guess that applies equally to a nomination that would happen tomorrow...I shan't be surprised by anything he now does to screw over his fellow Dem Congressmen/women.

        1. It's really telling that you think Manchin owes loyalty to "American Democrats" over "West Virginians" or "Americans".

        2. Fear not, better Americans, such as yourself, are bound to win out in the end over kulaks and wreckers like those evil Congressmen you mentioned.

        3. don't be hate-in on Senator Man-Chin, killing the BBB BS is Sleepy's best bet for Re-erection in O-24".

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

    Depends on when he falls down, where he falls down, if the judiciary is underneath him, and whether or not he's holding a fork at the time.

    1. Biden is the fake President. All nominations should be stalled and resisted to the utmost, as a patriotic duty. They are all woke, diverse, America hating, pro-lawyer rent seeking traitors.

  3. We need less fascist judges that endorse the Brandon administrations use of force to conduct medical experiments on the public at large. This is why it is important for the Republicans to take back the Senate in 2022 and get the White House in 2024. Then, what was done must be undone, by any means necessary.

    1. You really are confused.

      So get a majority in the Senate the usual nonviolent way, by winning elections.
      But *then* it's time to go full any means necessary?

      It's almost as though your grim rhetoric is actually more branding than real.

      1. Democrats seem to want Republicans to get a Senate majority in an unprecedented way: By a Senator changing parties.

        1. Not unprecedented. Jim Jeffords did that in 2001.

          1. Like Strom Thurmond did in 1964, Ben Nighthorse Campbell in the 90's.

            1. Richard Shelby in the 1990s, too.

  4. Given the support that the White House Press Secretary has provided to the progressive tantrum over Joe Manchin, one wonders how much longer the Democrats will have the ability to schedule Biden appointees for votes.

    I thought someone only a few months younger than I am (like Psaki) would be old enough to remember what happens when the White House abuses a same-party Senator beyond his endurance in a 50-50 Senate, but I guess the Republican victories in the 2002 elections made the Jim Jeffords example less memorable than I'd expect.

    1. Yeah, they’ve been ramming nominations through because the dems probably knew they’d eventually burn the Manchin bridge sooner than later.

      They seem to be playing with the kindling and it’s gonna catch flame.

    2. Perhaps the Democrats should take every dime destined for West Virginia, double it, and offer it to Alaska? I'd swap Murkowski for Manchin without hesitation, and maybe even offer a lesser deal to Collins.

      It's easier to handle these things when one recognizes that the arcs of history, progress, and demographics indicate medium- to long-term success. Manchin has demonstrated that he is an unreliable, disingenuous ally. That's an acute problem for Democrats but (1) there will be plenty of time to address the issue and (2) plenty of opportunity to arrange for West Virginia what it deserves.

  5. "The vast majority of judicial nominations and appointments, to date, have been for seats in states with two Democratic Senators."

    Good thing the judicial branch is not political.

  6. The Senate is 50 Republicans, 48 Democrats, and 2 independents. The independents caucus with the Dems but the Dems are still the minority party in the Senate. Why are the Republicans letting them usurp their senate power?

    1. Because the minority has more votes than the majority.

      In a better world the answer would be "because the party belongs to the members and not the members to the party", but independence is an old-fashioned notiion.

    2. You're joking, right? After the Republicans have twice in the last five elections been given the presidency by the electoral college despite losing the popular vote, and after the Republicans obtained 50 seats in the Senate only because 400,000 Wyoming voters can cancel out California, you are now complaining that something is undemocratic? Seriously?

      1. And Democrats only win the popular vote by replacing Americans with third worlders Americans never voted for or wanted.

        1. I suppose we could take a vote on how many people want you.

          1. I suspect I have more support among the white population (the original Americans) than the squat, drunk, violent mestizos do.

      2. Dont understand the 12th Amendment much?

        he Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

        The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

        The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;

        1. I’m sorry, what does the 12th Amendment have to do with the hypocrisy of demanding democratic results when they benefit one side, but not when they benefit the other?

          1. you're the one who thinks "Popular Vote" has anything to do with POTUS-dential erections (it doesn't). Thats what you get for going to Pubic Schools.

            1. Which private school did you attend, the Completely-Missing-The-Point Academy?

              1. like you did? (oooh! what a burn!) nope, I'm a Proud Pubic School Grad, No-Fuck-Vagina to be exact, was the only Cracker on the freshman basketball team.

    3. The Senate is 50 Republicans, 48 Democrats, and 2 independents. The independents caucus with the Dems but the Dems are still the minority party in the Senate. Why are the Republicans letting them usurp their senate power?

      Um, that's not how it works. The parties have no official status; it's the number of votes each bloc — regardless of party affiliation — has. The independents caucus with the Dems, meaning that their bloc has 50 votes. Plus Harris.

    4. They aren't, the Republicans and Democrats came to a power-sharing agreement. The Democrats have nominal control of the Senate because the independents vote for Democratic control and then the Vice President breaks the tie. But in reality there was an agreement made.

  7. And when Trump was ramming them through, the media presented it like a grave injustice. They're all full of shit.

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