Diversity in Federal Judicial Selection During the Biden Administration

Upper and Lower Bounds on Judicial Selection During President Biden’s Current Term

Two notable factors limit Biden’s judicial appointments: the number of judgments that might become vacant over the remainder of this presidential term, and the Senate’s “blue slip” custom, under which senators can delay or block District Court nominees in their states.

Trends in Turnover on the Federal Bench for 1981-2020

For 1981 to 2000, data from the Federal Judicial Center show that, on average and per year, approximately 40 judges resigned, retired, or took on senior status. From 2001 through 2020, approximately 44 judges resigned, retired, or elected senior status each year on average.

Research published in 2012 surveyed federal judges who could take senior status but chose not to. That study identified a number of personal, professional, political, and financial reasons that cause judges to remain active after they become eligible to retire or take senior status. Given that study’s findings, it is unsurprising that, as of the end of 2021, 50 active judges had Rule of 80 scores of 100 or higher — meaning they had accumulated 20 more years of age and/or service beyond the minimum needed to elect retirement or senior status — but did not retire or take senior status.

Consequently it appears reasonable to predict 40-50 new vacancies per year over the remaining three years of the current presidential term (not including vacancies from other causes). If only white males retire or take senior status over the next three years, then it’s possible that all or most of them could be succeeded by non-WMs.

There’s no definitive way to predict who will leave, but it seems reasonable to expect new vacancies and confirmations to comprise a mix of demographic categories, thus reducing President Biden’s opportunity to transform the composition of the judiciary. This rough prediction is supported by noting, for example, that 12 of the 40 district and circuit judges with the highest current rule of 80 scores are non-WMs.

The Current Role of the Senate in Judicial Nominations

It is also questionable whether President Biden will increase or even maintain his administration’s initially high rate of appointments, even if higher-than-usual numbers of judges choose to retire or take senior status during his current term. Under the Senate’s current “blue slip” policy, Republican senators can delay or block District Court nominees in their states.

Since the rule does not affect Circuit Court nominations, it seems probable that any such nominations between now and the end of the 117th Congress, in December 2022, will be confirmed. Likewise, judicial nominations to the District Courts in states with one or two Democratic senators (or an Independent senator who caucuses with the Democrats) likely will be confirmed by the end of the 117th Congress. In contrast, that is not likely true for Biden’s District Court nominations in states with two Republican senators, absent changes to the blue slip policy.

Thirty-two of the WMs who are or will be eligible to retire or take senior status sit on circuit courts. Nominations for their successors will not be subject to the blue slip through the end of the current Congress. However, not all of them might retire. None of them might retire.

Any successors to the 112 WM district judges who are or will be eligible to retire or take senior status are subject to blue slips from their state’s senators. Of the 112 seats held by WMs who are or will be eligible for retirement or senior status by the end of 2024, 56 are in states with two Democratic senators, one Democrat and one independent senator, one Democrat and one Republican, or one Republican and one independent senator. The other 56 are in states with two Republican senators. Again, some or none might retire.

In early 2023, moreover, control of the Senate might change parties — and federal judicial selection might grind to a halt until a new president is inaugurated in 2025. Judicial appointments might remain frozen even beyond that date if voters elect a president from one party and a Senate controlled by the other.