Biden promised to change the federal judiciary. Did he succeed?
With lifetime appointments and significant influence on American politics, the appointment of federal judges has become one of the most lasting ways in which a president can cement his legacy.
It appears that the Biden administration, more than any other administration, has mastered this judicial confirmation machine. The result was President Joe Biden appointing 233 federal judges, more than any single-term president since Jimmy Carter.
Why did we write this?
Confirming a historically diverse slate of justices may be one of President Biden’s strongest legacies, but zero-sum politics still dominate judicial selection.
No president has appointed a greater percentage of women or people of color to the bench. Mr. Biden also embraced professional diversity in his picks, nominating lawyers with experience in public defense, civil rights and employment law to positions traditionally dominated by prosecutors and veterans at big law firms.
However, this legacy has been secured with the help of an increasingly zero-sum political approach to judicial confirmations. Democrats “stopped being nice and started being tough,” says Carl Tobias, a professor at the University of Richmond School of Law. He adds that the politicization of this issue “may be more fundamental than ever before.” This can come at a cost.
As President Joe Biden’s term in office approaches, Democrats in the US Senate have been busy securing what could be his most lasting legacy.
Federal judges serve for life and can influence policy for decades longer than the president who appoints them. In recent years, both political parties have come to appreciate the value of appointing as many judges as possible when they control the Senate and the White House. But the Biden administration, more than any other, appears to have mastered this judicial confirmation machine.
The result was President Biden appointing 233 federal judges, more than any single-term president since Jimmy Carter. He appointed perhaps the most diverse roster of federal judges in history. This legacy may have been overlooked because there were fewer openings before the U.S. Supreme Court and 13 circuit courts of appeals — which have the final say on every case brought in the federal system.
Why did we write this?
Confirming a historically diverse slate of justices may be one of President Biden’s strongest legacies, but zero-sum politics still dominate judicial selection.
No president has appointed a greater percentage of women or people of color to the bench. Mr. Biden also embraced professional diversity in his picks, nominating lawyers with experience in public defense, civil rights and employment law to positions traditionally dominated by prosecutors and veterans at big law firms.
However, this legacy has been secured with the help of an increasingly zero-sum political approach to judicial confirmations. Democrats “stopped being nice and started being tough,” says Carl Tobias, a professor at the University of Richmond School of Law. He adds that the politicization of this issue “may be more fundamental than ever before.” This can come at a cost.
What has Biden been able to do?
The Biden administration made its priorities clear early on. Within 12 months of taking office, Biden approved 40 judges, more than any president in his first year since Ronald Reagan. By the time Biden leaves office, more than a quarter of serving federal judges will be his appointees.
Mr. Biden has also broken new ground in terms of candidate diversity. More than 60% of its judges are women – more than any president in history – and the same percentage are people of color. No president has appointed more Black women to the federal bench, nor have as many openly LGBTQ+ or Native American jurists.
Professional diversity was also a focal point. The federal judiciary, especially at its highest levels, has become increasingly homogenous in recent decades, populated mostly by white men who work in white prosecutors’ offices and law firms. Mr. Biden has appointed his fair share of prosecutors and big law veterans. But it has also appointed large numbers of judges with experience in other areas, such as public defense, civil rights, immigration, and labor law.
“In a democratic society, there is an expectation that institutions will more or less reflect the general population, and these appointments do that,” says Gbemende Johnson, a political scientist at the University of Georgia. “They declare that these institutions are not isolated to certain people.”
His sole appointment to the nation’s highest court embodies this push. In Justice Ketanji Brown Jackson, Mr. Biden appointed the first Black woman to the Supreme Court and the first female justice with experience as a solicitor general.
But Judge Jackson also symbolizes how little influence Biden has had in reshaping the upper echelons of the federal judiciary — at least compared to his predecessor.
While Biden appointed one justice to the Supreme Court, former President Donald Trump appointed three justices. While both men confirmed a similar number of judges to circuit courts of appeals, Mr. Trump was able to flip more districts to Republican-appointed majorities than Mr. Biden did to Democratic-appointed majorities.
Is politicization a problem now?
This may not be a bigger problem, but politicization remains a problem.
Politics played a role in judicial appointments Since America’s childhoodBut it has escalated in recent presidencies. To help Barack Obama, Senate Democrats eliminated the filibuster—the requirement that nominees receive 60 confirmation votes—for lower federal court judges. Senate Republicans have refused to hold hearings for President Obama’s Supreme Court nominee, Merrick Garland, for nearly an entire year. During the Trump administration, Republican senators eliminated the filibuster for Supreme Court nominees.
GOP senators at the time also adopted an exception for circuit court nominees for Senate The century-old “blue slip” ruleThis enables them to confirm appellate judges over the objections of Democratic senators from their home states. When Democrats returned to power in 2021, they kept this new rule, along with others that helped marginalize the minority party’s ability to influence judicial confirmations.
What are the consequences of political brinksmanship?
Federal judiciaries have not been modernized in more than 30 years, leaving judges to manage a large caseload, according to the Judicial Conference of the United States. In 2023 a reportthe Judicial Conference—the policy-making body for the federal court system—called on Congress to create new federal judiciaries to help the courts manage their case backlog.
The Senate responded by creating a bill that would create 66 new positions for federal judges. To be fair to both parties, the new seats will be filled in phases across three presidential administrations and six congresses.
The bill was approved in the Senate unanimously in August. But it did not pass the Republican-controlled House of Representatives Until last weekAfter the November elections indicated that President-elect Trump would be the one to occupy the first tranche of seats. The White House said Mr. Biden would veto the bill, and there would likely not be enough votes to override a presidential veto.
The stalemate is “further evidence of the politics of the moment,” says Christina Boyd, a professor of law and political science at Washington University in St. Louis.
“Every new seat is [viewed as] “It’s a win-win for the other guy in this situation,” she adds. “We are in a place where no one is willing to provide that support despite what I believe is a real need on the ground for more judges.”