Bench Memos

Law & the Courts

Judicial Appointments in 2021: Three Big Questions

I held off on drafting this annual overview post until after the Georgia run-off elections, so that we would know which party will have control of the Senate. By making the run-offs a referendum on his crazed claims about the presidential election, Donald Trump managed to hand the Senate over to the Democrats. As a result, Republicans will be in a much weaker position to stop judicial nominations made by soon-to-be President Biden.

Here are the big questions as I see them:

1. Will another Supreme Court vacancy arise?

There is a lot of pressure on Justice Breyer to step down, and I think that he will succumb to that pressure, either this year or next year. If Biden replaces him, the ideological composition of the Court won’t change much. By contrast, if a vacancy unexpectedly arises on the conservative side of the Court, Biden will have the opportunity to add a fourth liberal justice.

Joe Biden has promised that his first Supreme Court nominee will be a black woman. The 50-50 Senate means that he can’t take a lot of risks, so if he seeks a candidate who meets the conventional criteria, the frontrunners will be California supreme court justice Leondra Kruger and D.C. federal district judge Ketanji Brown Jackson (who is a leading candidate for the D.C. Circuit seat that Merrick Garland is vacating). Either candidate would probably have a fairly smooth—if tight—path to confirmation.

2. Will many new vacancies open up on the federal appellate courts?

There are some 40 or so federal appellate judges who were appointed by Democratic presidents who are “senior eligible”—that is, who could fully retire or take senior status and continue to receive their annual salary. (See the list I compiled in November 2019.) I’d expect most of these 40 to exercise that option early this year. [Clarification (10:30 p.m.): I’m focusing here on the vacancies that will open up for nominations, so for this purpose I include a judge’s decision to take senior status immediately as well as a decision to take senior status effective upon the confirmation of the judge’s successor. I would expect the latter option to predominate.}

Donald Trump appointed 9 federal appellate judges in the first year of his presidency. Thanks to Trump’s botching the Georgia Senate races, Biden should be able to double or triple that total in his first year.

3. Will the Biden White House make nominations expeditiously?

Judicial nominations are a priority for the Left, Biden’s chief of staff Ron Klain is very talented and deeply experienced in judicial confirmations, and the White House Counsel’s office will be full of talented lawyers. So there is plenty of reason to expect the White House to make nominations expeditiously.

The White House faces two obstacles. One is ideological infighting on the Left. Some progressives, for example, object to the nomination of any corporate lawyers and prefer so-called public-interest lawyers and activists. But many of the best credentialed candidates will be from Big Law. Ironically, the Democratic takeover of the Senate will magnify this problem, as the White House will have a tougher time telling progressives that it won’t nominate a particular candidate because of too much risk that the candidate won’t be confirmed.

The second obstacle is the Left’s diversity bean-counting. It will be relatively easy for the White House to find diverse candidates to nominate. But it will be a lot trickier to satisfy the Left’s demands for some ill-defined mix of diverse candidates. Look for some groups to complain that they’re underrepresented among the nominees.