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US federal courts look quite different than they did two years ago. Since taking office, Joe Biden has made it a top priority to appoint a diverse slate of judicial nominees who have helped change the face of the nation’s court system.
Democrats have used their narrow majority in the Senate to confirm roughly 100 of Biden’s judicial nominees – including Justice Ketanji Brown Jackson, the first Black woman to serve on the supreme court. After maintaining control of the Senate in the midterm elections, Democrats are well positioned to confirm even more federal judges in the next two years. But even with the party’s bolstered Senate majority, Biden has a long way to go before he can match Donald Trump’s historic impact on the federal judiciary.
Federal judges carry a unique responsibility in the US system of government because they have lifetime appointments. They often serve on the bench for decades, delivering wide-reaching decisions on everything from abortion access to environmental policy to gun safety. The crucial federal appeals courts often serve as the final stop before a case heads to the supreme court.
So far, Biden has moved at an impressive clip to get liberal judges confirmed to federal courts. In 2021, the president oversaw more first-year federal court appointments than any president since John F Kennedy, according to an analysis from Russell Wheeler of the Brookings Institution. Biden’s two-year track record on judicial confirmations is set to exceed most of his recent predecessors.
“The numbers that we’ve seen are amazing,” said Paul Gordon, senior legislative counsel for the progressive group People for the American Way. “[Democratic leaders] have clearly recognized that repairing our courts is a national priority, and I’m so excited to see that.”
In addition to their sizable numbers, Biden’s judicial nominees are notable for their racial, gender and professional diversity – particularly considering how long the highest US courts have been dominated by white men. Nearly three-quarters of Biden’s court nominees have been women, and almost two-thirds have been people of color. Biden has also made a point to nominate many former public defenders and civil rights lawyers, who have been historically underrepresented among federal judges.
That professional diversity will help ensure the equal application of the law, said Christopher Kang, co-founder and chief counsel of the progressive group Demand Justice.
“When you have different people who have different experiences and have had different clients and have had different careers advocating on the other side of the aisle, it sort of provides a greater understanding of the law and hopefully leads to more just results,” Kang said.
The Senate majority leader, Chuck Schumer, has successfully advanced dozens of Biden’s nominations through the chamber despite Republican efforts to block or at least delay confirmation. Because the Senate was evenly divided over the past two years, Democrats and Republicans held the same number of seats on the judiciary committee. Republicans used that evenly divided power to create a deadlock on committee votes and force Democrats to deploy additional, time-consuming procedural measures to approve judicial nominations.
With Raphael Warnock’s victory in the Georgia special election this month, Democrats will gain a seat on the judiciary committee. Even with Kyrsten Sinema’s unexpected announcement this month that she will change her party affiliation to independent, Democrats are still expected to have majorities on Senate committees.
“We can breathe a sigh of relief,” Schumer said the day after Warnock’s victory. “Obviously judges and nominees will be a lot easier to put on the bench.”
But Democrats still have their work cut out for them to match Trump’s judicial record. Over his single term in office, Trump remade the federal judiciary, placing very conservative judges on some of the most influential courts in the country. In addition to his three supreme court justices, Trump appointed 54 federal appellate judges and 174 district court judges, marking the largest single-term total of any president since Jimmy Carter.
Trump was able to appoint so many conservative judges in part because the Senate Republican leader, Mitch McConnell, refused to consider many of Barack Obama’s nominees in the final two years of his presidency. That practice empowered Trump to nominate one supreme court justice and fill several seats on federal appeals courts as soon as he took office. By the time Trump stepped down, he had nominated more than a quarter of all actively serving federal judges.
The impact of those judges’ rulings is being felt across the country. In September, a Trump judge sparked an outcry by granting the former president’s request to have a “special master” handle confidential documents seized by the FBI from his Mar-a-Lago estate. Trump’s appointees have also played a key role in blocking Biden administration policies on the coronavirus pandemic response and the handling of the US-Mexico border.
Trump’s imprint on the judiciary has been felt most acutely at the supreme court, where a third of the justices were appointed by the former president. In the past year, the court has curtailed the federal government’s ability to set climate policy and struck down a New York law aimed at regulating the carrying of firearms in public. Most notably, the court overturned a half-century of precedent by ending federal protections for abortion access.
“We’ve spent years and years and years talking about rightwing judges and the damage that they are doing to our communities, to our families, to our rights,” Gordon said. “But there’s nothing like having our words come true to make people sit up and take notice.”
Those rulings have made Democrats even more determined to leave their own lasting mark on the federal judiciary, and the Senate may be able to devote more time to that effort starting next month.
The conservative supreme court justices currently hold Biden’s student loan forgiveness program and a key element of immigration policy in their hands.
And once Republicans take control of the House in January, many bills passed by the Senate will probably fail in the lower chamber. With their legislative agenda stalled, Senate Democrats may turn more of their attention to advancing judicial nominations, which do not require House approval.
“I don’t expect to see a whole lot of legislating in the next few years … but the Senate is going to be able to have a lot of time to focus on judicial nominations,” Gordon said. “With an absolute majority, they are going to be able to use that time very efficiently.”
The Democrats’ Senate majority remains narrow, which could still present challenges in efforts to swiftly confirm judicial nominees. Just two absences or Democratic “no” votes could be enough to quash a confirmation. Kimberly Humphrey, legal director for federal courts at the Alliance for Justice, said Democrats’ 51-49 majority is “by no means a slam dunk”, even as she emphasized the importance of Warnock’s victory.
To help ease the confirmation process for some nominees, Humphrey’s group and other progressive organizations have called on Senate Democrats to reconsider the practice of “blue slips”.
The blue slip policy gives home-state senators the option to block district court nominees from even receiving a hearing, which has made it difficult for Democrats to fill vacancies in states with at least one Republican senator. As Biden looks to match Trump’s judicial record, a number of progressives are demanding hearings for district court nominees regardless of their home-state senators’ objections.
Depending on potential blue slip reform and the number of vacancies created in the next two years, Kang believes Biden could be on track to make history of his own.
“President Biden has the chance to confirm as many judges as President Trump did,” Kang said. “He’s certainly well on his way to leaving his mark on the bench.”
English (US)