The last few weeks have focused largely on the incoming Cabinet, but supporters of the new president are eager for him to tackle the dozens of court vacancies that stretch across the country.
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.
“It seems to me with a 50-50 edge in the Senate, the administration is going to have a lot of balancing to do,” Russell Wheeler, visiting fellow of Governance Studies at the Brookings Institution, said over the phone.
President Biden can also now establish a legacy that aligns with his campaign promises through these judicial appointments. The new administration has announced their intention to diversify the judicial branch by nominating more non-white, non-male candidates to the courts.
On December 22, White House counsel Dana Remus sent a letter to senators seeking their recommendations for judges in their home states. “We are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench,” Remus wrote, “including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
A spokesperson for Biden declined to comment for this article.
Choosing younger, more diverse judges on the socially progressive side of the spectrum would certainly help Biden push his policy agenda. Throughout his presidential run, Biden highlighted his commitment to social justice and racial equality, and the federal court system would serve a critical role in passing legislation toward that end. The practice would also help dismantle his predecessor’s legacy: President Trump appointed the least diverse group of judges in decades: Only 24% of them were women and 16% of them were people of color. Obama’s appointees, on the other hand, were 42% women and 36% people of color.
At present, the administration has faced some trouble enforcing the president’s executive orders on civil rights and immigration. For example, a Texas judge suspended the president’s 100-day deportation moratorium until February 23, citing “imminent and irreparable harm” that could be done to the state.
It’s unclear, however, how much the administration will heed recommendations from senators in red states, as well as how many of Biden’s appointees will make it to the bench. “States have a greater interest in who the district court judges are that sit in their specific states than they do in the circuit court judges that are hearing cases across several states,” Jonathan Adler, a law professor at Case Western Reserve University, said in a phone interview.
Home-state senators typically approve or reject judicial nominations through what is known as the blue-slip process. The tradition was honored during the Obama administration, enabling GOP senators to block his nominees, but Trump largely ignored it to fast-track his appointments.
“The question is, will the Senate under Durbin restore the blue-slip tradition that Republicans exploited really mercilessly under Obama, then threw away once Trump took office,” remarked Wheeler, referring to the new Democratic chair of the Senate Judiciary Committee, Illinois Senator Dick Durbin.
The Biden administration won’t be accepting evaluations from the American Bar Association before they choose their nominees, but the organization’s input could still hamper their nominations. A 2014 Harvard study by political scientist Maya Sen found that female or nonwhite judicial candidates were more likely to receive lower ratings from the ABA, making their nominations more likely to fail before the Senate.
“The Obama administration was frustrated by the ABA evaluation process, with the evaluations that came back on some people they had initially hoped to nominate,” Adler said. “It’s certainly possible that could repeat itself, but obviously after the nomination, not before.”
When will we start seeing Biden’s picks? The timeline is unclear.
Biden is also still trying to get his cabinet nominees confirmed. The Senate has only confirmed 7 out of 23 of them so far. Merrick Garland, his pick for attorney general and a bipartisan favorite, was only just scheduled to appear before the Senate Judiciary Committee on February 22 and 23.
President Biden is also trying to pass a massive legislation package for coronavirus relief and economic recovery in the coming weeks, which has dominated the Senate’s time and manpower since he took office.
“Biden is going to be filling the legislative caucus with bills,” Wheeler said, “so the Senate is going to have more on its plate.”