As the first half of President Biden’s term draws to a close, his team can count judicial nominations (and confirmations) as an area of success as his Administration has outpaced other recent Administrations in both nominations and confirmations (all numbers are drawn from the Federal Judicial Center). Biden also remains poised for a significant impact on the federal bench in the second half of his term.
In the first year of his presidency, Biden submitted 73 nominees to Article III courts, more than any other modern president. By the end of this year, Biden has submitted an additional 75 nominees, for a total of 148. This is slightly below the 158 nominations that Trump announced in his first Congress, but, given the significantly larger number of vacancies that Trump inherited, compared to Biden, the fact that the gap is so close is nonetheless impressive.
Of these 148 nominations, 1 has been to the Supreme Court, 37 to the court of appeals, and 110 to the district courts.
In 2021, the Senate confirmed 40 Article III judges: 11 judges to the U.S. Court of Appeals; and 29 judges to the U.S. District Court. The Senate subsequently confirmed 57 in 2022: 1 to the Supreme Court; 17 to the Court of Appeals; and 39 to the District Courts.
Furthermore, Biden saw confirmation of 65% of judicial nominees submitted in his first Congress. This is significantly higher than the 53% that Trump saw.
Furthermore, President Biden has still not seen a single judicial nominee defeated in an up-or-down vote. While Democrats did lose a confirmation vote on Third Circuit nominee Arianna Freeman, this was due to absences, and Democrats were able to confirm her on a motion to reconsider.
However, Biden is likely to have to withdraw two judicial nominations at the end of this Congress. Eastern District of Wisconsin nominee William Pocan has been blue-slipped by GOP Senator Ron Johnson, despite Johnson having previously signed off on him. With Johnson narrowly re-elected and Democrats not changing the district court blue slip policy so far, it is unlikely that Pocan has a path to confirmation and the White House will likely look for a new nominee.
Northern District of New York nominee Jorge Rodriguez faces a different issue. The judge he was nominated to replace, Judge David Hurd, has declined to take senior status, expressing opposition to Rodriguez not being a Utica-based practitioner. Barring another vacancy opening up on the court that Rodriguez might be nominated for (Judges Glenn Suddaby and Mae D’Agostino would both be eligible for senior status next Congress if they chose to take it), it is expected that he will not be renominated.
The Biden Administration has prioritized choosing women and racial/ethnic minorities for court seats, seeking to do so to offset the lack of diversity in the nominees of previous administrations. They have also sought out nominees from backgrounds that are traditionally less likely to become judges, including public defenders, and civil rights attorneys. Both focuses are reflected in the nominees put forward.
So far, Biden has nominated one woman to the Supreme Court, twenty-seven women to the court of appeals, and seventy women on the district level, making 66% of his judicial nominations women. Biden’s confirmations has surged the number of women on the U.S. Court of Appeals from 59 to 64, moving the court of appeals from 33.3% female to 36.6% female.
Perhaps the greatest praise that can be given to the Biden Administration on judicial nominations is they have done more with less than any other recent administration. President Biden had the narrowest of Senate majorities, dependent entirely on the presence of the Vice President, and had inherited a comparatively small number of judicial vacancies. Nonetheless, he was able to outpace President Trump and President Obama through a combination of strategy, persistence, and luck. Biden also owes a significant debt to the Senate Democratic caucus, who held together on every single nomination vote, allowing a number of controversial nominees to be confirmed despite strong Republican opposition; and to Sen. Lindsey Graham, who backed most of the President’s judges, allowing them to bypass time-consuming discharge votes. Additionally, on multiple occasions, Graham allowed Biden appointees to be voted out of Committee and avoid discharge even where he ended up opposing the nominee in the end. As a result, of the 97 judges confirmed under Biden, 90 received some Republican support for confirmation, meaning that just 7% of Biden confirmations were on party-line votes. In comparison, 9% of Trump appointees in his first Congress drew no Democratic support. With the Democratic majority now rising to 51, senators wishing to demonstrate some independence will presumably have more wiggle room to do so without jeopardizing confirmation. As such, one may expect to see some Democrats oppose Biden nominees, but it is unlikely that any would do so in a manner that is likely to defeat them. As such, with 113 vacancies still open to fill, Biden has the capacity to match, if not exceed, the 234 judicial confirmations that Trump saw.