Trump left his mark on the federal bench. Can Biden match his number of judicial nominations?
Washington — As President Biden prepares to close out his four years in the White House, he is on track to match or even surpass former President Donald Trump's total number of judicial confirmations.
Appointments to the federal bench have taken on added importance in recent years as courts have played a greater role in American life as the adjudicators of disputes over hot-button issues like abortion, immigration and the environment.
Trump closed out his single term with 234 appointments to Article III courts, which include the Supreme Court, federal courts of appeals, district courts and U.S. Court of International Trade. His impact on the federal bench has been quickly realized, with Trump-appointed judges overseeing closely watched cases involving the abortion pill, the Biden administration's immigration policies, student loan forgiveness programs and LGBTQ rights.
Now Mr. Biden, a former chairman of the Senate Judiciary Committee, is closing in on his predecessor's 234 judicial appointments, as the Senate continues to churn through confirmations in the weeks leading up the November election.
"The American people and senators and members of Congress and presidents all realize how important the courts are, especially recently," said Carl Tobias, a law professor at the University of Richmond who focuses on federal judicial selection. "They've given courts a lot of salience, and so I think they're more and more taken into account as the third branch of government and an important branch, and you need more than just Congress and the president to do things."
Presidents and the Senate, he said, are "quantitatively and qualitatively wanting to get the most and the best judges."
Biden's judicial nominations
With four months left in his presidency, 212 of Mr. Biden's judicial nominations have won approval by the Senate, a figure that includes Justice Ketanji Brown Jackson's historic confirmation to the Supreme Court.
Among those 212 judges are 44 that joined the appeals courts and 165 on the district courts. And with 29 nominees pending in the Senate, Mr. Biden could close out his presidency with 241 overall judicial appointments if they all are confirmed. Another 28 seats are currently open without nominees from the White House, according to the Judicial Conference, and many are from states with two Republican senators. The White House typically consults with home-state senators on nominations, though they can block a nominee to a district court.
"Every judicial confirmation makes an enormous difference to the courts to which these judges will join," a White House official told CBS News.
The official said while there is a "real possibility" of Mr. Biden having more of his judicial nominees approved by the Senate than Trump, the number is "less important than what it signifies, which is confirmations of the most demographically and professionally diverse nominees who understand the power of the courts and their role within the system of justice."
While Mr. Biden is poised to top Trump in total judges named to the federal bench, he's unlikely to match his predecessor's appointments to the 13 courts of appeals before leaving office. The former president had 54 of his nominees to those courts approved by the Senate, compared to Mr. Biden's 44. And with just five nominations pending, the president will likely fall short of Trump's total.
Trump, though, had the upper hand for making a mark on the federal appeals courts when he came into office, inheriting 17 vacancies after confirmations in the Republican-led Senate ground to a halt in the final two years of President Barack Obama's term. When Mr. Biden assumed the presidency, there were just two open appeals court seats.
Both presidents, though, put an emphasis on filling those vacancies first.
"The decisions of district judges are binding on no other judges, while the decisions of the courts of appeals are theoretically precedents for all the 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 doesn't bind Judge Smith. But when Circuit Judge Jones makes a decision along with two others on the panel, that's the law of the circuit."
Plus, the appeals courts are the "last stop 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 Trump's judicial picks after he lost the 2020 election to Mr. Biden, the first time a defeated president had a judge confirmed during a lame-duck session since 1980, according to Wheeler.
Democrats lambasted the confirmations at the time as a violation of a "long and established tradition" of halting consideration of judicial nominees after Election Day, but the GOP's willingness to break with that practice four years ago could benefit Mr. Biden during the upcoming lame-duck session.
"The precedent is there, the nominees are there, the will is there, so I would anticipate that, taking a page from the McConnell playbook, that confirmations will continue in the lame-duck," the White House official said, referring to former Senate Majority Leader Mitch McConnell. The Republican senator played a crucial role in the confirmations of Trump's judicial picks.
Beyond the total number of Mr. Biden's judicial nominations, the president has aimed to diversify the federal bench. He has repeatedly emphasized his goal of ensuring the judiciary reflects the diversity of the American people, and has worked to name judges of varying personal and professional backgrounds.
Mr. Biden set a record for the largest number of nominees to the appeals courts who worked as public defenders. More than 40% of those with lifetime appointments served as public defenders or civil rights lawyers, or worked to protect civil and human rights, according to a May memo from the Leadership Conference on Civil and Human Rights highlighting the president's 200th judge.
Mr. Biden also notched another 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 named the first Black woman to the nation's highest court with his selection of Jackson, and has named more Black judges than any of his predecessors in one term.
Senate Majority Leader Chuck Schumer told Democrats in a letter earlier this month that confirming more of Mr. Biden's judicial nominees is a priority for the coming weeks. But the upper chamber's slim margins could complicate their efforts.
Vice President Kamala Harris, who has cast tie-breaking votes for at least three candidates to the federal judiciary, is on the campaign trail working to defeat Trump in November, and five Democratic senators are in tight races to hold onto their seats. Democrats and four independents who typically vote with the party hold 51 seats to Republicans' 49, though one of those GOP senators, JD Vance, has been absent from the Senate campaigning for the vice presidency.
"On paper, Biden should be able to overall in lower court judges meet Trump," Wheeler said. "Whether the closeness in the Senate makes that difficult is going to be the $64 question."