WASHINGTON (CN) — As President Joe Biden closes out his first month in office, a large gap remains in his administration: dozens of open seats in federal and appellate courts across the country, with more to come in the next few months.
There are 57 vacancies in the judicial branch as of Friday, with 20 coming soon. It was only a few hours after Biden’s swearing in, for example, that U.S. District Judge Victoria Roberts announced in a letter that as of February 24, she would take senior status — a position of semiretirement with a reduced caseload and smaller office for judges aged 65 and up. Roberts was appointed by President Bill Clinton to the Eastern District of Michigan in 1998.
Another Clinton appointee, U.S. District Judge James Jones of the Western District of Virginia, is planning to take senior status on August 30. Jones has been presiding in Abingdon since 1996.
This many vacancies offer a promising start for the new president. The judicial branch plays a critical role in resolving disputes between Congress and the White House, as well as reviewing controversial legislation passed by the president and having the final say over regulatory decisions. Federal judges wound up in the spotlight numerous times during the last administration, first with several iterations of what President Donald Trump first described as a Muslim ban and, in the final months of Trump’s term, a series of court cases premised on the unsupported claim that widespread voter fraud had permeated the 2020 general election.
Compared with the past few administrations, Biden’s team finds themselves in the middle of the road, between the ample room for new appointments afforded to President Donald Trump and the great dearth of appointments made by President Barack Obama. Both presidents’ luck depended on then-Senate Majority Leader Mitch McConnell. He blocked nominees whenever possible during Obama’s last two years, while enabling Trump to appoint the most candidates to the judicial branch of any chief executive since President Jimmy Carter.
Trump made an aggressive push for his agenda on the judicial branch, with the help of a ruby-red Congress. During his four years in office, he nominated 274 candidates for judgeships across the country and managed to push 234 candidates into life-tenured positions. Obama, by contrast, appointed 311 federal judges in twice the time.
With Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, Trump also made the most Supreme Court appointments by a one-term president since President Herbert Hoover. A study by the Pew Research Center found that Trump left office having appointed 28% of the federal judiciary, not including judges who are still on the bench but aren't in active status.
Trump’s presidency was also one marked by the controversial practice of court-packing: During his presidency, he added six new positions to the Executive Office for Immigration Review, raising the board from 17 to 23 appellate judges.
And he got results. Greg Chen, director of government relations at the American Immigration Lawyers Association, observed that Trump-appointed judges on the board had “abysmal” grant rates for asylum-seekers. “An average of 2.45% for six judges,” he said in a phone interview. “That’s far below the norm of the 29% grant rate for asylum by immigration judges across the country.
Chen recommended that the Biden administration review Trump’s judicial appointments for ideological bias.
Now that Democrats have a slim majority in the Senate, Biden is in a good position to appoint judges who will aid his legislative agenda. But challenges still lie ahead for his nominations.