Democrats now have a slightly bigger Senate majority but not much to do with it. And so, it’s time for more judges.
Retaining the Senate means that President Biden and Senate Democrats will be able to continue nominating and confirming federal judges, and, if they play their cards right over the next two years, Democrats may get as many judges on the federal bench as Republicans did during former President Donald Trump’s term. If they get lucky, they could end up with even more.
As of Dec. 23, 94 of Biden’s nominees have been confirmed to district and appellate courts — compared to 83 at this point in Trump’s presidency. And there are still plenty of positions left to fill. Right now, there are 79 open seats on the federal bench and 30 upcoming vacancies — this is when a judge announces they will retire at a future date. If Biden and Senate Democrats manage to fill all of those seats, there will be 203 Biden judicial nominee confirmations, compared to the 228 appointments Trump and Senate Republicans got through.
More could be coming, too. While fewer vacancies are likely to open up in the next two years, there are 85 Democratic-appointed judges who will be eligible to retire with full benefits in 2023 and 2024, according to data compiled by Brookings Institution fellow Russell Wheeler. Still, it’s very possible for Biden to match or even out-appoint Trump, since that estimate does not account for additional judges who may step down unexpectedly due to health or other factors.
Right now, our analysis of data from the Federal Judicial Center shows that 11 percent of federal judges are Biden appointees and 26 percent are Trump appointees. (The rest were appointed by past presidents.) If Biden successfully fills all of the current vacancies, however, he will have appointed 20 percent of all federal judges. That shift is significant for demographic and political reasons. Trump’s appointees were overwhelmingly white and conservative, with traditional backgrounds for federal judges like private law practice and prosecution, while Biden is mostly nominating women and people of color who often come from nontraditional professional paths like public defense. If Biden takes advantage of the vacancies that are still open, his appointees could end up counterbalancing Trump’s — at least in some places. And that, in turn, could make the courts even more politically polarized.
“In some ways, our courts are more divided than they’ve ever been,” said Chad Westerland, a political science professor at the University of Arizona who studies the federal courts. “You have judges that are coming from entirely different political ecosystems — and who will enact policies that follow the ideologies of the major national parties.”
Biden was always going to have a hard time matching Trump’s influence over the courts — and he needed a minimum of four years with a Democratic-controlled Senate to pull it off. This, experts told us, is due to the fact that the Republican-controlled Senate refused to confirm most of former President Barack Obama’s judicial nominees in 2015 and 2016, leaving Trump with 105 vacancies to fill. By contrast, Biden came in with 45 vacancies.
The good news for Biden is that over the past couple of years, a lot of judges have taken senior status — a form of quasi-retirement that opens up their seat — which has given him more vacancies to fill. That includes a decent number of Republican-appointed judges: Our analysis shows that 33 percent of the judges who have taken senior status under Biden were appointed by Republicans. That share is higher than the share of Democratic-appointed judges who took senior status under Trump, and it could be a sign that some Republican appointees who want to retire won’t bother holding out to see who wins the 2024 election.
But the bad news for Biden is that the Republicans he’s replacing are mostly district court judges, which is a lower-impact judicial position. The more highly contested positions are on appeals courts, which have power over entire regions. So while Biden might be flipping plenty of district court seats, the courts with greater sway are still dominated by conservatives. That seems unlikely to change going forward: According to our analysis, only four Republican-appointed appeals court judges have taken senior status since Biden took office (and one of those judges was a holdover from former President Bill Clinton who was appointed by former President George W. Bush as part of a compromise, so she’s not really a Republican appointee), compared to 23 Democratic-appointed appeals court judges.
More bad news for Biden: His judicial impact thus far has been geographically limited. Those leftover vacancies from the Obama era gave Trump the ability to eventually appoint 104 judges in states that currently have at least one Democratic senator, while there are swathes of the country where Biden isn’t making any judicial inroads. Only eight of Biden’s appointees are in states with at least one senator of the opposing party. This trend is particularly pronounced among appeals court nominees: So far, Biden has only appointed three judges in states with at least one Republican senator, while Trump appointed 24 judges in states with at least one Democratic senator.
If anything, experts told us, Biden’s presidency is setting a new tone for how much a president can change the courts, particularly the appeals courts. During his term, Trump flipped control of three appeals courts from Democratic appointees to Republican appointees and made it difficult for Democrats to ever gain control of at least three others. So far, Biden’s impact has been more muted. He did flip control of the powerful Second Circuit Court of Appeals, which is based in New York and handles many cases in the financial sector, from Republican appointees back to Democratic appointees, and will likely hand control of the Third Circuit Court of Appeals back to Democratic appointees next year. But Biden has yet to appoint a single judge to the Republican-dominated Eighth and Eleventh Circuits, which cover most of the South and Midwest, and he’s only appointed one judge to the hyper-conservative Fifth Circuit.
That, experts told us, isn’t likely to change meaningfully over the next two years, since Republican-appointed judges — especially appeals court judges — will largely try to avoid relinquishing their seats while Biden is in the White House. “Judicial appointments have gotten sucked into partisan political warfare, and if you’re a judge, how can you not be aware of that?” said Neal Devins, a professor of law and government at the College of William & Mary. “We’re going to be increasingly moving into territory where there are red judge seats and blue judge seats, and without an unexpected illness or death, those safe seats will be very hard to flip.”
Biden’s changes to the judiciary — even if they end up being more limited than Trump’s — will still be important for the people whose fates are decided in courtrooms around the country. Christina Boyd, a political science professor at the University of Georgia who studies the courts, said that even though district court judges don’t have the power to set the law for entire regions, their decisions on issues like sentencing are still consequential. Having more public defenders with reliably liberal ideologies serving as judges could mean fewer long sentences, and more skepticism of prosecutors’ claims generally. That’s a sharp contrast with the tough-on-crime perspective that Trump’s conservative appointees are likely to bring, and in that sense, could introduce some balance to a right-leaning judiciary.
But more broadly, the growing polarization in the courts will result in an increasingly wide gulf in the way Republican and Democratic-appointed judges interpret the law. “This whole notion that you can be treated equally by judges wherever you are — that’s just not the case,” Devins said. Whether a case is filed in the Democratic-controlled First Circuit or the Republican-controlled Fifth Circuit could make all the difference in how it turns out.