Today marks the two-year anniversary of President Biden’s inauguration. Much commentary on his judicial nominations has noted the higher number of confirmations for President Biden’s nominees than for President Trump’s at this point in their respective presidencies. Biden had a total of 97 Article III judges confirmed, a dozen more than Trump’s 85 at his two-year mark.
That statistic offers a superficial comparison. District courts account entirely for the gap between their totals. Biden appointed one Supreme Court justice, but Trump had appointed two, and Biden’s total of 28 circuit judges was surpassed by Trump’s 30. Biden appointed 68 district judges while Trump appointed 53.
During the 117th Congress that just concluded, the Senate operated with a procedural advantage it did not have during the 115th Congress, which occurred during Trump’s first two years. Earlier, the Senate’s rule requiring 30 hours of post-cloture debate applied to district court nominations, slowing the rate at which those nominees could be processed, until April 2019, during the 116th Congress, more than two years into Trump’s term, when that requirement was reduced to two hours. So Biden’s district court confirmation timelines during his first two years were not similarly hampered by the 30-hour rule.
Additionally, when Trump was inaugurated, there was a vacancy on the Supreme Court, and prioritizing that delayed the processing of other judicial nominations. The vacancy on the high court was filled by the confirmation of Neil Gorsuch on April 7, 2017, about two and a half months into Trump’s presidency. The next confirmation of a judicial nominee did not occur until Amul Thapar’s confirmation to the Sixth Circuit on May 25, and the next two after that did not occur until July.
Of course, no factor is more consequential in shaping the federal judiciary than the Supreme Court. In 1978, President Carter enjoyed the statutory expansion of the federal judiciary with the creation of 152 new judgeships, 35 on the courts of appeals and 117 on district courts. But with no Supreme Court vacancies to fill during his term, his impact on the judiciary, notable as it was, was limited.
Biden might wish he had had the opportunities of both of his immediate predecessors. Presidents Obama and Trump both made two Supreme Court appointments during their first two years (before the latter would fill a third seat during his next two years). Obama replaced two members of the liberal bloc, David Souter and John Paul Stevens, with two others, Sonia Sotomayor and Elena Kagan respectively, who were of a similar jurisprudential bent. While replacing Antonin Scalia with Neil Gorsuch in 2017 did not shift the ideological balance of the Supreme Court, Trump was able to effect such a shift the following year by replacing Anthony Kennedy with Brett Kavanaugh. Biden replaced Stephen Breyer with Ketanji Brown Jackson, which did not significantly shift the Court’s ideological balance.
Moreover, on the courts of appeals, Biden has replaced only four Republican appointees (one of whom, Helene White, was a Democrat who was part of a deal during the second Bush administration) while Trump replaced 11 Democratic appointees during his first two years. The seats Biden has flipped from Republican-appointed occupants are overwhelmingly in the district courts as opposed to the appellate courts. Russell Wheeler projects that “the paucity of projected vacancies . . . and the administration’s disinclination so far to fill district vacancies in red and purple states” will “make it almost impossible for Biden to reverse the shift Trump accomplished in the courts of appeals’ party-of-appointing-president composition.”
For now, according to FiveThirtyEight, about 11% of federal judges are Biden appointees versus 26% who are Trump appointees. Even if Biden fills all current vacancies, he will still have appointed 20% of the bench. Of course, additional vacancies in the future can increase that total. But the Biden administration is not on pace to surpass recent benchmarks for realigning the federal bench.