Because Democrats will retain control of the Senate, President Biden will continue to have an easy time getting his judicial nominations confirmed. How different things would be if Donald Trump had gracefully conceded his loss in the 2020 presidential election and not gone on to sabotage the run-off elections for the two Senate seats for Georgia. How different things would be if Trump hadn’t pushed in Republican primaries for terrible MAGA candidates—e.g., Oz, Masters—in winnable races this cycle.
The Senate has already confirmed 25 of Biden’s appellate nominees, and 12 more are pending. That’s a very impressive total. For sake of comparison, the Senate confirmed 30 of Trump’s appellate nominations during his first two years.
Looking at the details, though, I’m struck to see how little Biden’s appointments have affected the ideological composition of the courts of appeals. In making this observation, I don’t mean to suggest at all that the appointments are ideologically insignificant. Among other things, they perpetuate those seats with liberal judges and thus make it all the more difficult for the next Republican president to transform the appellate courts.
Of Biden’s 25 appointments so far, all but four were to seats in which the incumbent was a Democratic appointee. Further, of the four incumbents that had been Republican appointees, one (Helene White) was a liberal Democrat nominated by President George W. Bush in a deal with Senate Democrats, and the three others fell somewhere between moderate and liberal.
There is a similar picture with respect to the 12 pending nominees. Eleven of them are to seats held by Democratic appointees. (The one exception is Biden’s nomination of Cindy Chung to replace Third Circuit judge Brooks Smith.)
To be sure, Trump’s appellate appointments were likewise heavily to seats in which the incumbent had been appointed by a Republican president. If my quick math is right, though, Trump increased the number of Republican-appointed appellate judges from 71 to 96 over the course of his four years. (I’m relying on Russell Wheeler’s Table 2 here, which I have adjusted to include 2020 data.) A good chunk of that increase is due to the ten vacancies that he inherited, thanks to Mitch McConnell, from the Obama administration.
Looking forward, I wonder how many additional appellate seats will open up for Biden to fill. Here is my list of the Democratic appointees who are (or will soon be) eligible to take senior status or retire. (I welcome corrections.)
Kayatta, 1st Circuit
Greenaway, 3rd Circuit
Gregory, 4th Circuit (recess-appointed by Clinton, then appointed by GWB)
King, 4th Circuit
Wynn, 4th Circuit
Graves, 5th Circuit
Stewart, 5th Circuit
Clay, 6th Circuit
Moore, 6th Circuit
Stranch, 6th Circuit [I omitted her initially]
Gould, 9th Circuit
Rawlinson, 9th Circuit
Wardlaw, 9th Circuit
Matheson, 10th Circuit
Wilson, 11th Circuit [I omitted him initially]
Dyk, Federal Circuit
Taranto, Federal Circuit