A highlight of President Biden’s uneven first 12 months in office is the unprecedented demographic and professional diversity — and record numbers — of his district and circuit court appointments (especially in contrast to the slow pace of executive confirmations). The first-year numbers are, of course, snapshots — the Trump administration’s modest court-approved first-year number did not predict the four-year total, only Jimmy Carter’s.
However, Biden’s 42 first-year appointments outnumber all but President Kennedy’s. Biden:
- submitted a significant number of nominees earlier this year;
- without opposition party senators strongly nominated for courts; and
- saw his nominees receive unanimous support from Democrats (and strong opposition from Republicans) in the Senate ballots.
Subsequent posts will discuss the impact of Biden’s appointments and first term prospects in 2022 (and beyond).
Biden’s first 12 months of appointments surpassed any predecessor in the four decades since the process has become more contentious. He had one more than President Reagan (although Reagan also got a Supreme Court appointment). Kennedy had 56, thanks in part to a major legislative introduction of new judgeships.
How Reagan and Biden reached their totals shows why presidents today may need party control in the Senate to seat many justices. Reagan submitted 43 first-year nominations; the Senate confirmed 40 of them – by unanimous votes in about 30 days. Biden got two more confirmations. The median speed of confirmations was 119 days for district judges and 103 days for district judges. And he submitted almost one and a half times as many nominees.
Neither confirmation was unanimous; in fact, 12 of its 19 district candidates and 12 of its 13 circle candidates received 40 or more negative votes. Democratic unity was vital.
Almost all of Reagan’s and HW Bush’s lower court appointments were confirmed unanimously or by vote. Over 90% of Clinton and Bush circuit judges were confirmed unanimously. That percentage dropped nearly 30 points with Obama and then dropped like a rock under Trump. At the same time, the strong opposition – measured by 40 or more “No” votes – increased sharply after Obama. Resistance to district candidates was greater.
Had the filibuster, which requires 60 votes to proceed with a court nomination, been in place, Biden’s (and, to a lesser extent, Trump’s) confirmation totals would have been much lower.
The closest vote on a Biden nominee was 50-49 for a Ninth Circuit Court of Appeals nomination that was deadlocked in the Judiciary Committee, fueled by what the nominee called her “overheated” criticism of then-Judge Brett Kavanaugh’s nomination for colonel called court. By comparison, another candidate became the first African American to be confirmed on the Court of Appeals for the Federal Circuit with just 34 votes against.
Some opposition to Biden’s nominees was a payback for Democratic senators’ opposition to Trump’s nominees. Other senators probably agreed with a colleague who had voted against every Biden candidate because, as he said, he “just really doesn’t like them.”
Sen. Lindsey Graham (RS.C.) expressed the old-fashioned view that “the President has the right to choose judges . . . and as long as they qualify, they should generally be confirmed.” Graham and GOP presenter Susan Collins (Maine) not only voted for less controversial candidates, but also for all 12 district candidates who received 40 or more no votes; Collins and Murkowski also voted for seven of the 12 40-plus-vote Circuit nominees (Graham voted for five).
pace of nominations
Biden drove the process: 40% of his nominees came in the second quarter of his first year. Only George W. Bush came close to this level.
Both took office with aggressive nomination plans. Conservative right-wing groups presented like-minded candidates to Bush. Biden has chaired the Senate Judiciary Committee, is a pro-diversity advocate and may be hoping to placate progressives who are upset over his opposition to structural change on the Supreme Court. And none faced strenuous positions on the Supreme Court in their first year. Clinton’s first minor court nominees came days after Judge Ginsburg’s confirmation on August 3. Trump only proposed a single candidate before Judge Gorsuch’s confirmation on April 7. Without Supreme Court nominations, Reagan and Obama might have submitted more than the handful while the nominations were pending.
nominations and Senate delegations
Fifty-eight (94%) of Biden’s 62 district nominations and 11 of his 13 county nominations went to courts with two Democratic senators or no senators (eg, Puerto Rico). First-year presidents have increasingly concentrated nominees in this way because Senate leadership has historically given home-state senators from both parties at least a say — and sometimes veto — over court nominations. During the Obama administration, Senate leadership did not process nominations that home state senators opposed. During the Trump administration, home state senators influenced district but not county nominations.
The nomination process slows as the White House negotiates with home state senators and seeks candidates that those senators will not object to after their nomination. In general, the White Houses have found smoother sailing with their own party senators from the home state. Table 4 shows the mean days between the date of vacancy and nomination for all candidates and then for the vacancy in courts without opposition party senators. With four exceptions, the nominations in these states came faster overall. However, it’s important to note that home-state Republican senators weren’t the only obstacle to a quick nomination. For example, a position advertised in February 2021 in the District of Columbia had to wait 11 months for a candidate.
For whatever reason, the number of first-year court nominations for the opposition party has increased, albeit unevenly, from 33% for vacant county nominees in Reagan’s first year to 53% for Trump and 85% for Biden. There was a similar trend in first-year nominations for district court vacancies, rising from 26% in Reagan’s first year to 76% for Trump to 94% for Biden.
Biden’s few nominations for split delegations were for a seat in Pennsylvania on the Third Circuit Court of Appeals and four for districts in Ohio and Wisconsin. Biden’s nomination for a state with two Republican senators (Tennessee) prompted one of his senators to complain that it was “incredibly disrespectful of the precedent afforded to the other side.” Democrats responded that during the Trump presidency, Republicans abandoned deference to home state senators.
In summary, the aggressive nomination efforts of the Biden administration and the unified Senate Democrats achieved more court confirmations in the first year than any other president since Kennedy in 1961. My next post in this series will look at the impact of these nominations on the judiciary deal with
footnote
1. Data from the Federal Judicial Center biographical database, the US Judicial Administration Office, job openings and authorized judicial office data, Library of Congress presidential nominations, and data I have collected and analyzed from these and other sources.
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