The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.