Bench Memos

Law & the Courts

Biden, Trump, and The Future of Our Courts

Former Vice President Joe Biden talks to the media in Washington, D.C., April 5, 2019. (Joshua Roberts/Reuters)

Anita Hill wants Joe Biden to apologize.  While he’s thinking about it, I hope he considers sending one to Justice Thomas, for what Thomas courageously described as “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas,” and “a message that unless you kowtow to an old order, this is what will happen to you.​”  And another one to Judge Bork, whose confirmation hearing questions seem even more cartoonish today than they did then.  But don’t stop there!  Biden should also apologize to Justice Kavanaugh, for planting the seeds for the smear campaign the now-justice would later endure.

All of this is a reminder of just how important 2020 will be in terms of shaping the future of the judicial branch.

Since Inauguration Day, President Trump has made a major impact on the federal judiciary—arguably the crowning achievement of his administration to date.  In addition to appointing two Supreme Court justices in his first two years in office, the President—supported by the extraordinary leadership of Senator Mitch McConnell and Senator Chuck Grassley—named a record-setting 30 judges to the federal courts of appeals.  And since January, the Senate has confirmed seven additional court of appeals judges, totaling 37 to date.  No other president has come close that number so early in an administration.

These 37 judges total approximately 21% of the 179 authorized active court of appeals judges across the country.  Currently there are ten circuit court vacancies, five of which have named nominees:  Michael Park (Second), Joseph Bianco (Second), Ken Kiyul Lee (Ninth), Dan Collins (Ninth), and Dan Bress (Ninth). The current court of appeals vacancies without named nominees include two on the Second Circuit (New York and Connecticut), one on the Third Circuit (Pennsylvania), one on the Fifth Circuit (Mississippi), and one on the Ninth Circuit (Oregon).

Once these ten seats are filled, President Trump will have nominated approximately 26% of the active federal appellate court judges in the country.  Two of these circuits, the Second Circuit and the Third Circuit, will have flipped from majority Democratic-appointed to majority Republican-appointed.

But there are even more potential vacancies on the horizon.  Approximately 61 of the 179 authorized active circuit court judges are currently eligible to take senior status.  Of these 61, 27 were appointed by Republican presidents and 34 were appointed by Democratic presidents.  As my NRO colleague Ed Whelan recently explained in detail, a new vacancy is created when an active judge takes senior status (a decision, of course, which is entirely discretionary on the part of the judge).

For myriad reasons, these 61 senior status-eligible judges have opted to continue to remain active for the time being.  But inevitably at least some of these judges will assume senior status over the next few years.  And this figure does not account for other judges who are close to being eligible to take senior status and will do so before the end of President Trump’s first term.  For example, last week Judge Christopher Droney, a judge on the U.S. Court of Appeals for the Second Circuit appointed by President Obama, announced that he would be taking senior status on June 30, 2019 after he turns 65.  (A judge who is both 65 and who has accumulated at least 15 years of federal judicial service satisfies the so-called “Rule of 80” under 28 U.S.C. 371.)

And many of the 61 and counting currently eligible judges could take senior status in the years after the 2020 election.  This means that President Trump’s ability to reshape the federal judiciary in a second term could be even greater than his record-shattering first term.  Assuming that just half of the currently eligible court of appeals judges were to assume senior status in a second Trump term and that President Trump was able to successfully fill those vacancies, nearly 45% of authorized active judgeships would be filled by Trump appointees.  (And that is to say nothing of any additional Supreme Court vacancies that could arise.)

Of course on the flip side, were a Democrat to defeat President Trump in 2020, that individual would be filling the swelling number of potential vacancies.  To give a sense of the magnitude of the potential impact, if a Democratic president were instead to fill these 61 potential future vacancies, nearly all of the thirteen federal circuits could soon be controlled by majority Democratic-appointed judges.  (And again, that is to say nothing of what could happen to the Supreme Court if vacancies occurred there.)

Joe Biden’s renewed profile might be causing division on the left.  But, on the right, nothing could do more to remind Republicans that the smear campaigns endured by Bork, Thomas, and Kavanaugh have their roots in a liberal legal agenda that Biden knows all too well.  The Democratic playbook has not changed.  It’s just gotten older.

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