This is the first of two posts on how President Joe Biden has impacted the federal judiciary during his tenure
The Heritage Foundation’s Judicial Appointment Tracker provides current and comparative data on seven features of the judicial appointment process. When the current 118th Congress finally adjourns, the Senate will have confirmed 235 of Biden’s nominees to life-tenured courts: 187 to the U.S. District Court, 45 to the U.S. Court of Appeals, two to the U.S. Court of International Trade, and one to the U.S. Supreme Court. This is the second-highest appointment total in a single presidential term and one more than President Donald Trump appointed during 2017-20.
Biden achieved this total in a radically changed confirmation process that Democrats have been building for the last two decades. They have abandoned one longstanding norm after another, turning the Senate from a check on the president’s appointment power into an aggressive competitor for control of the judiciary.
Democrats changed one of those norms in two ways. First, for the first time in American history, they used the filibuster during President George W. Bush’s first term to prevent final votes that would confirm his judicial nominees. Senate rules require a supermajority to invoke cloture, or end debate, before a final vote. Today, Senate Rule 22 requires “three-fifths of the Senators duly chosen and sworn” to invoke cloture, or end debate. A filibuster occurs when a cloture vote fails to reach this 60-vote threshold.
Extended debate has been the single most distinctive feature of the Senate’s legislative process since the turn of the 19th century but was never intended to be part of the confirmation process for a president’s nominees. In fact, the Senate had taken a cloture vote on only ten judicial nominees by the time Bush took office in 2001, and nine of those nominees were confirmed. After vowing to use “any means necessary” to defeat Bush judicial nominations, however, Democrats used the filibuster to block confirmation of ten U.S. Court of Appeals nominees in his first term.
A decade after injecting filibusters into the confirmation process, Democrats pulled them out for equally partisan reasons. In 2013, having taken control of the Senate and with Barack Obama in the White House, 52 Democrats voted to reinterpret “three-fifths” in Rule 22 to mean “simple majority.” This means that the same simple majority needed to confirm a nomination can now also invoke cloture.
Achieving this result without changing the text of Rule 22, however, also means that a nominee’s opponents can still force the Senate to go through the cloture process, including votes that will not change the outcome but can add days to the confirmation timetable for each nomination.
While the Senate took a cloture vote on only 2 percent of Obama’s first-term judicial nominees before confirming them, Democrats forced such cloture votes on 76 percent of Trump nominees, and Republicans have done so on 87 percent of Biden nominees.
Democrats also changed another longstanding confirmation process norm. For more than two centuries, no matter which party controlled the Senate or occupied the White House, judicial nominees were confirmed with little or no opposition. Confirmation conflicts were rare and focused on individual nominees whose records, or the politics surrounding them, raised specific issues.
The conflict over Clarence Thomas’s 1991 nomination to the Supreme Court, for example, obscures the fact that only three of President George H. W. Bush’s 193 judicial appointees had any opposition at all. The same was true under President George W. Bush. Despite a few high-profile confirmation conflicts, fewer than 8 percent of his judicial appointees had any opposition, and one-third of those who did received no more than five negative votes.
Between 1900 and 2016, from Presidents Theodore Roosevelt through Obama, judicial nominees were confirmed with an average of just two negative votes. Democrats increased that more than ten-fold to 23 average votes against Trump nominees, and Biden’s confirmed nominees have had an average of 39 opposition votes.
This is a glimpse into the judicial confirmation process that Democrats built. My next post will complete this look at how Democrats have changed the process and then examine Biden’s judicial appointment record more closely.