Washington— As President Biden prepares to close his four years in the White House, he is on track to match or even exceed the number of judicial confirmations of former President Donald Trump.
Appointments to the federal bench have grown in importance in recent years as the court has taken on a larger role in American life as the adjudicator of disputes over hot-button issues like abortion, immigration and the environment.
Trump closing period one with 234 appointments to Article III courts, which include the Supreme Court, Federal Court of Appeals, district courts and the US Court of International Trade. Which has an impact on the federal bench quickly realizedwith a Trump-appointed judge closely overseeing the case involving the abortion pillsthe Biden administration immigration policy, student loan forgiveness program and LGBTQ rights.
Now Mr. Biden, the former chairman of the Senate Judiciary Committee, is closing in on his previous 234 judicial appointments, as the Senate continues to make confirmations in the weeks before the November election.
“The American people and senators and members of Congress and the president all know how important the courts are, especially recently,” said Carl Tobias, a law professor at the University of Richmond who focuses on federal judicial selection. “He’s given the judiciary a lot of salience, and that’s why I think he’s more of a third branch of government and an important branch, and you need more than just Congress and the president to do things.”
The President and the Senate, he said, “quantitatively and qualitatively want to get the best and best judges.”
Biden’s judicial nomination
SAUL LOEB/AFP via Getty Images
With four months left in his presidency, 212 of Mr. Biden’s judicial nominees have been approved by the Senate, figures that include Judge Ketanji Brown Jackson. confirm history to the Supreme Court.
Among these 212 judges there are 44 who joined the appellate court and 165 in the district court. And with 29 nominations pending in the Senate, Mr. Biden could close his presidency with 241 judicial appointments overall if all are confirmed. Another 28 seats are currently open without a nomination from the White House, according to the Judicial Conference, and many from states with two Republican senators. The White House usually consults with home state senators on nominations, though it can block nominees to district courts.
“Every judicial confirmation makes a big difference in the court that this judge will join,” a White House official told CBS News.
The official said that while there is a “real possibility” Mr. Biden has more judicial nominees approved by the Senate than Trump, the number is “less important than indicated, which is the confirmation of the most demographic and professional nominees who understand the power of the judiciary and its role in the system justice.”
When Mr. The former president has 54 judicial nominations approved by the Senate, compared to Mr. Biden’s 44. And with only five pending nominations, the president is likely to fall short of Trump’s total.
However, Trump had the upper hand in making his mark on federal appeals courts during his tenure, securing 17 vacancies after confirmation in the Republican-led Senate stalled in the last two years of President Barack Obama’s term. When Mr. Biden became president, there were only two open appeals court seats.
However, both presidents have placed emphasis on filling the vacancies first.
“A district judge’s decision is no other judge’s, while an appellate court’s decision is theoretically precedent for all district judges in that circuit,” said Russell Wheeler, a nonresident senior fellow at the Brookings Institution who tracks nominations. “When District Judge Jones takes a decision, it is binding on the parties, but it does not bind Judge Smith. But when Circuit Judge Jones takes a decision along with two others on the panel, that is the law of the circuit”.
In addition, the appeals court is the “last stop in the process” for most parties, he said, especially since the Supreme Court has agreed to review some lower court decisions.
The Republican-led Senate also continued to vote on Trump’s 14 judicial picks after he lost the 2020 election to Mr. Biden, the first time a losing president had a judge confirmed during a deadlocked session since 1980, according to Wheeler.
Democrats hailed the confirmation as a violation of the “long and established tradition” of suspending consideration of judicial nominees after Election Day, but the GOP’s willingness to scrap the practice four years ago could benefit Mr. Biden during the upcoming lame-duck session.
“The precedent is there, the nomination is there, it will be there, so I would expect, taking a page from McConnell’s playbook, that the confirmation will continue on a lame duck,” the White House official said, referring to the former. Senate Majority Leader Mitch McConnell. Republican senators played a key role in confirming Trump’s judicial picks.
Beyond the total number of Mr. Biden’s judicial nominations, the president has his sights set on a variety of federal benches. He has repeatedly emphasized his goal of ensuring that the judiciary reflects the diversity of the American people, and has worked to name judges from diverse personal and professional backgrounds.
Mr. Biden holds the record for the most nominations on the appeals court working as a public defender. More than 40% of people with lifetime pledges become public defenders or civil rights lawyers, or work to protect civil and human rights, according to a May memo from the Leadership Conference on Civil and Human Rights that highlights 200th presidential judge.
Mr. Biden also made another milestone when the Senate confirmed Mary Kathleen Costello to the federal bench this week. She became the 12th openly LGBTQ judge confirmed during the administration, surpassing Obama’s record of 11. She was named the first Black woman on the nation’s highest court with the choice of Jackson, and has named more Black judges than any predecessor 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 slim edge of the upper room can complicate those efforts.
Vice President Kamala Harris, who has voted for at least three federal court nominees, is on the campaign trail working to defeat Trump in November, and five Democratic senators in a tight race to hold a chair. Democrats and four independents who usually vote with their party hold 51 seats to Republicans’ 49, although one GOP senator, JD Vance, is absent from the Senate campaigning for vice president.
“On paper, Biden should generally in lower court judges meet Trump,” said Wheeler. “Whether the closeness in the Senate makes it difficult is the $64 question.”
