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Based on Biden’s two years of judicial appointments, Trump’s four-year record seems secure

This post provides metrics of Biden judicial appointments in the two years since Inauguration Day and updates an earlier post on Biden’s four-year prospects.

Biden’s pace of nominations and confirmations slowed in his second year

At the end of his first year, Biden had more appointments than any recent predecessor (and of any predecessor except Kennedy). At the end of two years, his 96 appointments lag well behind Clinton and slightly behind George W. Bush (and Kennedy).

TABLE A—RECENT PREDECESSORS’ FIRST-AND SECOND-YEAR CONFIRMATIONS

1st year 2nd year % increase Two-year total
Reagan 40 47 18% 87
H.W. Bush 15 55 267% 70
Clinton 27 99 267% 126*
W. Bush 27 72 167% 99*
Obama 12 48 300% 60
Trump 22 61 177% 83
Biden 41 55 34% 96

* Counts Roger Gregory (Fourth Circuit court of appeals) as a 2000 Clinton recess appointee rather than a 2001 Bush confirmed appointee.

Biden’s appointees increased his proportion of all district judges from four to 10 percent of the 674 statutory judgeships and from seven to 15 percent of the 179 circuit judgeships (Obama appointees are 34% of district judgeships; Trump’s are 30% of circuit judgeships.)

Democratic district court appointees outnumbered Republican appointees when Biden took office, and the gap has grown: Democratic appointees now occupy 48.7% of district judgeships, versus 41.8% for Republican appointees and 9.4% vacant.

By contrast, Table B shows that Republican court of appeals appointees still outnumber Democratic appointees, although both numbers have declined since Biden took office as more judgeships have become vacant.

TABLE B—179 COURT OF APPEALS JUDGESHIPS

As of: Rep. Appointees Dem. Appointees Vacancies
Jan. 2017 71 (39.7%) 91 (50.8%) 17 (9.5%)
Jan. 2021 96 (53.6%) 81 (45.2%) 2 (1.2%)
Jan. 2023 91 (50.8%) 77 (43.0%) 11 (6.2%)

Republican appointees are creating few vacancies for Biden to fill

Trump in his four years enabled Republican appointees to occupy a majority of the statutory judgeships, something Biden likely won’t reverse by 2025. Biden, for example, could achieve a bare Democratic-appointee majority of the 179 judgeships only if he filled all 13 current and announced future vacancies and no Democratic appointees leave active (full-time) status.

In Biden’s first two years, four of his 28 appointees replaced Republican appointees. In Trump’s first two years, 11 of his 30 appointees replaced Democratic appointees. Republican appointees created both vacancies that Biden inherited (one by death), but since his inauguration, only five Republican appointees have created vacancies, versus 31 Democratic appointees. (Not surprisingly, the comparison was reversed in Trump’s first two years: 16 Republican appointees versus seven Democratic appointees created vacancies).

Of the 13 appellate courts, five (in the Fifth through Eighth, and Eleventh, circuits) have Republican appointee majorities among active-status judges; all are solid majorities that will not change anytime soon. The number was seven two years ago, when the Second circuit’s court had seven Republican and six Democratic appointees; that’s now reversed, and the 14-judgeship Third Circuit’s court will have seven, each Republican and Democratic appointees with the confirmation of a pending nominee. (Some make too much of these figures, by overlooking the participation of senior status and visiting judges on the randomly selected three-judge panels that decide almost all cases, and inflating the real but modest relationship between party of appointing president and judicial decisions).

Appointees continue to reflect unprecedented demographic and vocational diversity

Biden’s second year saw a continuation of his unparalleled demographic diversification of the federal judiciary. Eleven of his 28 circuit appointees are Black woman, compared to eight for all his predecessors. Only five of his 96 circuit and district appointees are white males, leading to a drop in that demographic’s proportion of active status judges from 51.4% on Inauguration Day to 46.5% now. (By my count, however, 11 of his 53 pending nominees are white males.)

Biden’s second year also continued his frequently cited appointment of judges with experience as lawyers representing criminal defendants unable to hire counsel. A previous post noted that of Biden’s predecessors, only Obama’s percentage of appointees with public defender experience was in double figures—14%, with 11% having substantial experience (three or more years). Over two years, 27% of Biden’s circuit and district appointees had substantial public defender experience; 31% had at least some.

Nominations got submitted comparatively quickly

Several factors help explain Biden’s impressive, albeit not record-breaking, two-year confirmation numbers.

Biden submitted his 39 circuit nominations in 146 median days after vacancy creation or future-vacancy announcement. He submitted his 113 district nominations after 253 days. That’s faster than recent predecessors—Obama and Trump submitted circuit nominations in 259 and 164 median days, respectively, and 345 and 335 median days for district nominees.

Endemic in the judicial appointment process is White House negotiations with home state senators eager to protect their patronage, institutionalized in Senate leadership’s not processing nominations unless home state senators (of either party) affirm their acceptance of the nominee by returning a favorable “blue-slip”. Current Senate leadership has continued the variation established during Trump’s four years–honoring home-state senators’ objections for district but not circuit nominees. But the results of the practice are not clear-cut.

No doubt to avoid extensive bargaining with home-state Republican senators over district nominations, Biden nominated largely to vacancies in courts with no Republican senators—100 of 113 district nominations. Those nominations got in place much sooner than did the thirteen nominations in red and purple states (four each in Ohio and Pennsylvania and one each in Idaho, Indiana, Iowa, Mississippi, and Wisconsin). Median days from vacancy to nomination for the 100 were 253, versus 399 for the 13.

But time to nomination was also slightly longer for nominees to circuit vacancies with Republican senators, even though home state senators lost their blue slip veto for circuit nominees in 2017. Of Biden’s 38 circuit nominations, nine were to red or purple states—200 median days—versus 129 median days for the other 29.

The district judge nomination strategy has left litigants in red and purple states with comparatively fewer full-time judges. Of the 58 current and announced future vacancies, over two-thirds (39) are in red and purple states, even though judgeships in those states are almost exactly half of the 674 statutory district judges. Moreover, those 39 are now 355 median days old, versus 239 for the other 19. Sixteen of the 39 are in Florida, Texas, and Louisiana.

The Senate approved Biden’s appointees quicker than it did those of recent predecessors

Time from nomination to confirmation started to increase appreciably in Clinton’s second term, but has declined recently, partly because in 2019 the Senate lowered the maximum hours of pre-voting floor debate on nominees from 30 to two. The median days to confirm circuit nominees went from 253 in Obama’s first two years to 179 in Trump’s to 123 in Biden’s; the median days for district judges were 140 (Obama) to 225 (Trump) back to 139 (Biden). (Biden nominees have also had Judiciary Committee hearings sooner than did those of Trump, and of Obama’s circuit nominees.)

Unlike time to nomination, time to confirm Biden’s district nominees did not vary by Senate delegation. Biden’s four red and purple state circuit appointments took longer to confirm than the 119 median days for the other 24 appointments, but generalizations are risky. Two red state nominees with home-state Republican senator approval (Indiana and Louisiana) moved to confirmation faster than the two who lacked that support (Pennsylvania and Tennessee, 253 and 295 days respectively). And a nominee, from blue-state Georgia has been waiting over a year for a floor vote.

Strong but Apparently Not Universal Party Unity in the Face of Strong Opposition

“Nay” floor votes on judicial nominees have become routine in recent administrations. Table C shows, for example, that none of Obama’s 16 circuit confirmations in his first two years encountered over 40 “nay” votes, while roughly two-thirds of Trump’s and Biden’s did.

TABLE C— “NO” VOTES, FIRST TWO YEARS

COURT OF APPEALS DISTRICT COURTS
“Nay” Votes “Nay” Votes
All votes Median >40 None All votes Median >40 None
Obama 16 12 0 11 (69%) 44 0 1 (3%) 40 (91%)
Trump 30 44 20 (67%) 2 (7%) 53 0 4 (8%) 35 (66%)
Biden 28 43 18 (64%) 0 68 43 41 (60%) 2 (3%)

Despite this now-routine opposition, no Democratic senator or Democratic-caucusing independent voted against any Biden judicial nominee, which helps explain his confirmation record despite a 50-50 Senate division (Democratic absences caused one nominee to fail in her initial floor vote (47-50), followed by confirmation a week later, 50-47.)

On the other hand, one circuit and six district nominees—all from blue states— have been waiting for confirmation for over a year, four of them over 400 days. All have had hearings, so it’s likely that the majority leader lacked sufficient votes for successful floor action.

Implications for Years Three and Four

Jimmy Carter holds the record for most district and circuit appointments in four years—262 (aided by Congress’s 1979 creation of 202 additional judgeships). Trump’s 231 appointments in four years are a record among recent predecessors—as are his 54 circuit and 177 district appointments.

TABLE D—THIRD- AND FOURTH-YEAR CONFIRMATIONS

After 2 years After 4 years % increase
Reagan 87 165 90%
Bush 70 191 173%
Clinton 126 201 60%
Bush 99 203 105%
Obama 60 171 185%
Trump 83 231 178%
Biden 96 N/A N/A

Several factors will affect Biden’s ability to match Trump’s four-year record.

First, Biden enters his third year with 13 more confirmations than Trump had at the same point but only 53 pending nominations, compared to Trump’s 71.

Second, Republicans had a 53-47 edge in the 2019-20 Senate, slightly stronger than the current Democrat-Independent majority of 51. At least some of the 20 or more Democratic and Independent senators who are or may be seeking reelection in 2024 could be less willing than they were in Biden’s first two years to vote for nominees whom opponents will blast as judicial extremists.

Third, Biden’s 28 circuit appointments are 26 shy of Trump’s four-year 54. Confirmation of the eight pending circuit and two likely circuit nominees, and of nominees for the three current nominee-less circuit vacancies would produce only 41 appointments. (And those 13 confirmations are not sure things.)

The most likely place to look for additional appointments are among the 16 Democratic circuit judges who are in active status but eligible under a statutory “rule-of-80” formula to retire while retaining their judicial salaries (almost all vacancies come about this way). Whether a sufficient number–14 in this simplified scenario–will do so in time for Biden to replace them is iffy at best. Five have been eligible for at least ten years. A few—but not 14—vacancies could occur by death in office, resignations prior to retirement eligibility, or retirement by some of the 25 active status but eligible Republican appointees. (Trump was in somewhat the same boat: his 52nd and 53rd circuit confirmations in June 2020, left the courts of appeals vacancy-less, even though 25 Republican appointees were retirement eligible. He got his 54th appointment by filling the late-October vacancy created by Indiana-based Amy Barrett’s Supreme Court appointment.)

Fourth, Biden’s 68 district appointments are 109 short of Trump’s 177, and confirmation of the 43 pending nominees—hardly a sure thing—would still leave him 66 short. Filling the current vacancies that still lack nominees will require Biden to increase sharply the proportion of nominees to red and purple state vacancies, which to date have constituted only about a tenth of his district nominations; 39 of the 58 nominee-less vacancies are in states with Republican senators. And he will need to speed up those nominations. In his first two years, it took 399 median days to get nominations in place in red and purple states (versus 253 days for other nominations). In this simplified scenario, were Biden to get nominees in place and confirmed for all 58—not likely—he then could look for additional vacancies to fill, mainly from the current 21 retirement-eligible active status Democratic appointees.

To sum up

Biden was quick off the block in his first-year appointments and slowed somewhat in his second year. To achieve record numbers of confirmations in four years he will need some luck in the form of a vacancy influx and more, or at least more successful negotiations with home-state Republican senators over district nominees.

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