Bench Memos

Law & the Courts

Number of Judicial Vacancies for Biden to Fill Continues to Climb

President Biden’s opportunity to make an imprint on the federal courts is growing as additional seats continue to open up on the federal bench. One month ago, there were 53 current and 19 announced future vacancies on the federal bench. As of this morning, there are 64 current vacancies listed on the USCourts.gov website, and an additional 27 pending vacancies, for a total of 91 openings for President Biden to fill.

Most of these vacancies consist of seats filled by nominees of prior Democratic Presidents. Most are also on the federal district courts, where local Senate delegations tend to have significant influence. (Here in Ohio, for example, potential nominees are screened and selected by a bipartisan commission created by the Senators, and that it appears that how the three spots on the Northern District of Ohio will be filled.)

Nine of the openings (4 current and 5 future) are for seats on the U.S. Courts of Appeals. There are two spots on the Second and Tenth Circuits, and one spot each on the First, Fourth Seventh, and Ninth. There is also one current opening on the U.S. Court of Appeals for the D.C. Circuit (currently held by Judge David Tatel), where there will be a second opening upon the confirmation of Judge Merrick Garland as the Attorney General.

When will we see the Biden Administration’s first nominees? That’s a good question. Both the Trump and Obama Administrations did not make their first lower court nominations until mid-to-late March. George W. Bush did not make his first federal judicial nominations until May.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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