Washington — As President Biden prepares to conclude his four years in the White House, he is on pace to match or surpass former President Donald Trump’s total number of judicial confirmations.
Federal judicial appointments have taken on increased importance in recent years as the courts have played a larger role in American life as arbiters of disputes over hot-button issues like abortion, immigration and the environment.
Asset completed his single term with 234 appointments to Article III courts, which include the Supreme Court, federal courts of appeals, district courts, and the U.S. Court of International Trade. His impact on the federal bench has been quickly realizedwith Trump-appointed judges overseeing closely watched cases involving the abortion pillthe Biden administration immigration policies, student loan forgiveness programs And LGBTQ Rights.
Mr. Biden, a former chairman of the Senate Judiciary Committee, is now closing in on his predecessor’s 234 judicial nominations as the Senate continues to process confirmations in the weeks before the November election.
“The American people, senators, congressmen and presidents are all aware of the importance of the courts, especially in recent times,” said Carl Tobias, a law professor at the University of Richmond who studies the selection of federal judges. “They’ve given the courts a great deal of importance, and so I think they’re increasingly seen as the third branch of government and an important branch, and it takes more than Congress and the president to get things done.”
Presidents and the Senate, he said, “want quantitatively and qualitatively to obtain the greatest number and the best judges.”
Biden’s Judicial Nominations
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With four months left in his presidency, 212 of Mr. Biden’s judicial nominations have been approved by the Senate, a figure that includes Judge Ketanji Brown Jackson. historical confirmation to the Supreme Court.
Of those 212 judges, 44 have joined the courts of appeals and 165 have joined the district courts. And with 29 pending Senate nominations, Biden could end his presidency with 241 total judicial nominations if they are all confirmed. Another 28 seats are currently open without a White House nomination, according to the Judicial Conference, and many come from states with two Republican senators. The White House typically consults with senators from their home states on nominations, though it can block a district court nomination.
“Every judicial confirmation makes a huge difference to the courts to which those judges will be assigned,” a White House official told CBS News.
The official said that while there is a “real possibility” that Mr. Biden will have more judicial nominations approved by the Senate than Mr. Trump, the number is “less important than what it means, which is confirming the most demographically and professionally diverse nominations who understand the power of the courts and their role within the judicial system.”
Although Mr. Biden is on pace to surpass Trump in the number of federal court judges nominated, he is unlikely to match the number of appointments his predecessor made to the 13 appeals courts before leaving office. The former president had 54 of his nominations to those courts approved by the Senate, compared with 44 for Mr. Biden. And with only five nominations pending, the president will likely fall short of Trump’s total.
But Trump had the advantage of leaving a mark on the federal appeals courts as soon as he took office, inheriting 17 vacancies after confirmations in the Republican-dominated Senate stalled during the last two years of President Barack Obama’s term. When Mr. Biden took office, there were only two vacancies on the appeals courts.
Both presidents, however, stressed the need to fill these vacant positions as a priority.
“District judges’ decisions are not binding on any other judge, while appeals court decisions are theoretically precedent for all district judges in the circuit,” said Russell Wheeler, a nonresident senior fellow at the Brookings Institution who tracks nominations. “When District Judge Jones makes a decision, it’s binding on the parties, but not on Judge Smith. But when Circuit Judge Jones makes a decision with two other members of the panel, it’s the law of the circuit.”
Moreover, appeals courts are the “last step in the process” for most parties, he said, especially since the Supreme Court agrees to review so few lower court decisions.
The Republican-led Senate also continued to hold votes on 14 of the judges chosen by Trump after he lost the 2020 election to Mr. Biden, the first time a defeated president has seen a judge confirmed in a lame-duck session since 1980, according to Wheeler.
Democrats had lambasted the confirmations at the time as a violation of a “long and established tradition” of suspending judicial consideration until after Election Day, but the GOP’s willingness to break with that practice four years ago could benefit Mr. Biden in the next session.
“The precedent is there, the nominations are there, the will is there, so I would expect that, taking a cue from McConnell, confirmations will continue under the lame duck,” the White House official said, referring to former Senate Majority Leader Mitch McConnell. The Republican senator played a crucial role in confirming Trump’s judicial nominations.
Beyond the total number of Mr. Biden’s judicial nominations, the president has sought to diversify the federal judiciary. He has repeatedly emphasized his goal of ensuring that the judiciary reflects the diversity of the American people and has sought to appoint judges from diverse personal and professional backgrounds.
Mr. Biden set a record for the most appellate court nominees ever worked as public defenders. More than 40 percent of those appointed to life have served as public defenders or civil rights attorneys, or worked to protect civil and human rights, according to a May memo from the Conference on Civil and Human Rights Leadership highlighting the 200th Presidential Judge.
Biden also reached a new milestone when the Senate confirmed Mary Kathleen Costello to the federal bench this week. She became the 12th openly LGBTQ judge confirmed during his administration, surpassing Obama’s record of 11. He appointed the first Black woman to the nation’s highest court with Jackson’s nomination, and has appointed more Black judges than any of his predecessors in a single term.
Senate Majority Leader Chuck Schumer told Democrats in a letter earlier this month that confirming more of Mr. Biden’s judicial nominees was a priority in the coming weeks. But narrow margins in the upper chamber could complicate their efforts.
Vice President Kamala Harris, who voted for at least three federal judicial nominees, is campaigning to defeat Trump in November, and five Democratic senators are running. tight races Democrats and four independents who usually vote with the party hold 51 seats to Republicans’ 49, although one of those Republican senators, J.D. Vance, was absent from the Senate campaigning for vice president.
“On paper, Biden should be able to compete with Trump in the lower courts,” Wheeler said. “Whether the closeness in the Senate makes that difficult will be the question of the $64 vote.”
