Biden promised to transform the federal judiciary. Did he succeed?
With lifetime appointments and an outsize influence on U.S. policy, appointing federal judges has become one of the most enduring ways a president can cement their legacy.
And more than any other, the Biden administration appears to have perfected this judicial confirmation machine. The result has been President Joe Biden appointing 233 federal judges, more than any one-term president since Jimmy Carter.
Why We Wrote This
Confirming a historically diverse slate of judges could be one of President Biden’s strongest legacies, but zero-sum politics continues to dominate judicial selection.
No president has appointed a greater proportion of women or people of color to the bench. Mr. Biden has also embraced professional diversity in his selections, nominating lawyers with experience in public defense, civil rights, and labor law to positions traditionally dominated by prosecutors and veterans of major law firms.
This legacy, however, has been secured with the help of an increasingly zero-sum political approach to judicial confirmations. Democrats “stopped being nice and started being ruthless,” says Carl Tobias, a professor at the University of Richmond School of Law. The politicization of the issue “may be more substantial than it’s ever been,” he adds. And that could come at a cost.
As the clock ticks down on President Joe Biden’s term in office, Democrats in the United States Senate have been busy securing what could be his most enduring legacy.
Federal judges serve for life and can influence policy for decades longer than the president who appoints them. In recent years, both political parties have come to appreciate the value of appointing as many judges as possible when they control both the Senate and the White House. But more than any other, the Biden administration appears to have perfected this judicial confirmation machine.
The result has been President Biden appointing 233 federal judges, more than any one-term president since Jimmy Carter. And he has appointed perhaps the most diverse slate of federal judges in history. That legacy may have been overlooked because there were fewer openings to the coveted U.S. Supreme Court and 13 circuit courts of appeal – which have the final word on every case filed in the federal system.
Why We Wrote This
Confirming a historically diverse slate of judges could be one of President Biden’s strongest legacies, but zero-sum politics continues to dominate judicial selection.
No president has appointed a greater proportion of women or people of color to the bench. Mr. Biden has also embraced professional diversity in his selections, nominating lawyers with experience in public defense, civil rights, and labor law to positions traditionally dominated by prosecutors and veterans of major law firms.
This legacy, however, has been secured with the help of an increasingly zero-sum political approach to judicial confirmations. Democrats “stopped being nice and started being ruthless,” says Carl Tobias, a professor at the University of Richmond School of Law. The politicization of the issue “may be more substantial than it’s ever been,” he adds. And that could come at a cost.
What has Biden been able to do?
The Biden administration made its priorities clear early. Within 12 months of taking office, Mr. Biden had confirmed 40 judges – more than any president in their first year since Ronald Reagan. By the time Mr. Biden leaves office, over a quarter of active federal judges will be his appointees.
Mr. Biden has also been breaking new ground in terms of nominee diversity. Over 60% of his judges are women – more than any president in history – and the same proportion are people of color. No president has appointed more Black women to the federal bench, nor as many openly LGBTQ+ or Native American jurists.
Professional diversity has also been a focal point. The federal judiciary, particularly at its highest levels, had become increasingly homogeneous in recent decades, populated mostly by white men with careers in prosecutors’ offices and white-shoe law firms. Mr. Biden has appointed his fair share of prosecutors and Big Law veterans. But he has also appointed large numbers of judges with experience in other areas, such as public defense, civil rights, immigration, and labor law.
“In a democratic society, there’s an expectation that institutions will to some degree reflect the broader population, and these appointments do that,” says Gbemende Johnson, a political scientist at the University of Georgia. “They communicate that these institutions are not cut off to certain people.’’
His one appointment to the nation’s highest court embodies this push. In Justice Ketanji Brown Jackson, Mr. Biden appointed the first Black woman to the Supreme Court and the first justice with experience as a public defender.
But Justice Jackson is also emblematic of the minimal impact Mr. Biden has had in reshaping the upper reaches of the federal judiciary – at least compared with his predecessor.
While Mr. Biden appointed one Supreme Court justice, former President Donald Trump appointed three. And while both men confirmed a similar number of judges to the circuit courts of appeal, Mr. Trump was able to flip more circuits to Republican-appointee majorities than Mr. Biden has for Democratic-appointee majorities.
Federal Judicial Center, Congressional Research Service
Is politicization more of an issue now?
Maybe not more of an issue, but politicization remains an issue.
Politics has played a role in judicial appointments since America's infancy, but it has ratcheted up in recent presidencies. To help Barack Obama, Senate Democrats eliminated the filibuster – a requirement that nominees receive 60 votes to be confirmed – for lower federal court judges. Senate Republicans refused to hold hearings for President Obama’s Supreme Court nominee, Merrick Garland, for almost a full year. During the Trump administration, Republican senators eliminated the filibuster for Supreme Court nominees.
GOP senators at that time also adopted an exception for circuit court nominees to the century-old “blue slip” rule, enabling them to confirm appellate judges over objections from Democratic senators from their home states. When Democrats returned to power in 2021, they kept that new rule, along with others that helped marginalize the minority party’s ability to influence judicial confirmations.
What are the consequences of political brinkmanship?
Federal judgeships have not been updated in over 30 years, leaving judges to manage “crushing” caseloads, according to the Judicial Conference of the United States. In a 2023 report, the Judicial Conference – the policymaking body for the federal court system – called on Congress to create new federal judgeships to help courts manage case backlogs.
The Senate responded by drawing up a bill that would create 66 new federal judge positions. To be fair to both parties, the new seats would be filled in tranches across three presidential administrations and six Congresses.
The bill passed the Senate unanimously in August. But it didn’t pass the Republican-controlled House of Representatives until last week, after the November election indicated that President-elect Trump would be the one to fill the first tranche of seats. The White House has said that Mr. Biden will veto the bill, and there would likely not be enough votes to override a presidential veto.
The gridlock is “one more piece of evidence of the politics of the moment,” says Christina Boyd, a professor of law and political science at Washington University in St. Louis.
“Every new seat is [viewed as] a win for the other guy in this situation,” she adds. “We’re at a place where nobody is willing to give that ground despite what I think is a real need on the ground for more judges.”
