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Analysis | Biden has appointed many judges, but has not reshuffled the bench like Trump


This week, the Senate confirmed President Biden’s 100th judicial nominee. And while Democrats applauded the milestone — Senate Majority Whip Richard J. Durbin (D-Ill.) noted that this moved faster than both Trump and Obama’s judicial confirmations — Biden has been unable to reshape the judiciary like its predecessor.

Today, there is an increasing emphasis on which party appointed which judges, especially when they make major headline-grabbing decisions. Most recently, these have included controversial decisions by a Trump nominee in the Mar-a-Lago documents case and the Supreme Court’s quashing of Roe against Wadewhich Trump (rightly) had assured his nominees would do.

As our politics have become increasingly partisan, judges have become an increasingly important measure of a government’s success. Trump and then-Senate Majority Leader Mitch McConnell (R-Ky.) made a show of touting their work to revamp the federal judiciary (even if judges are supposed to be apolitical), as well as the The Biden administration has beaten its own record. setting the pace in confirming judges.

But while Biden’s overall pace has been somewhat faster than previous presidents, his ability to reform the judiciary on his own has been much more limited — especially at the highest levels.

Thanks to several variables, Trump was able to completely reshuffle not only the Supreme Court, but also the nation’s appellate courts — the most powerful judges below the nation’s Supreme Court — by replacing justices nominated by Democrats. Biden’s ability to undo that has been hampered, and his appointees consist primarily of district court judges and replace Democrat-nominated judges with new Democrat-nominated judges.

When Trump was elected in 2016, there were 18 more Democratic-appointed appeals judges than Republican-appointed judges — 90 to 72.

But that changed just two years later. By the end of 2018, there were still 16 Republican-nominated justices — 97 to 81, a net gain of 34. Trump was able to bend three of the 13 circuits of the appeals court from a majority of Democratic nominees to a majority of Republican.

In contrast, as of November 2022, Biden had only narrowed the deficit he inherited from a 17-judge gap to an eight-judge gap—a net gain of nine. And only one circuit returned from a majority of Republican nominees to a majority of Democratic ones. There are still more Republican-nominated appellate court judges, 91 to 83.

While the GOP under Trump increased its share of judges from 44.4 percent to 54.5 percent in Trump’s first two years, Biden had, as of November increased the Democrats’ share from 45.2 percent to just 47.7 percent.

The picture is similar at the district court level, where Democrats started Biden’s presidency closer to equality. As of January 2021, a total of 48.8 percent of federal judges were nominated by Democratic presidents, according to the Pew Research Center. As of August, that number had risen to 51.65 percent.

The reasons why Biden hasn’t made as much progress are complicated, but mostly boil down to the fact that the GOP’s blockade of President Barack Obama’s Supreme Court nominee extended to other justices as well.

According to Russell Wheeler of the Brookings Institution, Trump came to power with 17 appeals court vacancies to be filled after Republicans controlled the Senate for the past two years and refused to confirm judges. None of the appellate court nominees Obama filed in 2015 and 2016 were confirmed, in stark contrast to how a senate led by the opposition party previously handled matters.

(Trump tried to suggest that Obama was merely failing to fill the vacancies, but that’s just not true.)

Biden did not benefit from a similar dynamic, taking office after Republicans controlled the Senate for all four of Trump’s years and prioritized confirming judges at a record pace.

Biden who has two more years in a Democratic-controlled Senate should help his party confirm additional justices and perhaps close the appellate gap (along with allowing them to fill any Supreme Court vacancies that arise could occur). But the Trump equation should also temper expectations about how much of an effect it could have.

As you can see in the chart above, there has been relatively little movement in the balance between Republican and Democrat-nominated appellate judges in the last two years of Trump’s presidency. That’s in large part because judges tend to time their retirements so that the party that nominated them can choose their replacement.

But the alternative — Republicans who can block all attempts to fill vacancies as they arise, including at the Supreme Court level — was certainly less appealing to Democrats heading into the 2022 midterms. row (and with some help from Trump) they managed to avoid that worst-case scenario.

This story has been updated with the latest news.

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