On My ‘Three Big Questions’ on Judicial Appointments in 2021

Earlier this year, shortly after Donald Trump handed over control of the Senate to the Democrats, I presented what I believe were three big questions for judge nomination in 2021. In addition to my two posts earlier this morning on President Biden’s judicial appointments, I will provide my answers to these questions.

“1. Will there be another Supreme Court vacancy? “

Of course, there wasn’t a vacancy on the Supreme Court, so we didn’t see which candidate President Biden would choose to fulfill his promise that his first candidate for the Supreme Court would be a black woman. I doubt the pressure on Judge Breyer to retire had any effect, but if it did it probably backfired.

“2. Will there be many new positions open at the federal appeals courts? “

I predict that most of the 40 or so federal appellate judges appointed by Democratic presidents who have the right to retire or achieve executive status would do so “earlier this year.” While most have done so by now, very few did so in the first half of the year. So my prediction that Biden would knock down Trump’s entire appointment candidates who were confirmed in his first year of presidency turned out to be false. In fact, Biden stayed one under Trump’s total of twelve.

“3. Will the Biden White House be quick to make nominations?”

Biden announced his first legal nominations on March 30th, and delivered new batches of nominees fairly regularly – nearly seventy total. So I think that overall the White House has clearly succeeded in doing this.

A striking exception is David Tatel’s seat on the DC Circuit. Judge Tatel announced on February 11 that he would accept senior status, but the White House was unable to nominate his seat for the next nine months. I suspect there has been a lot of argument with Hispanic activists who complained early on about being underrepresented in Biden’s picks.

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