This is the second post looking at President Joe Biden’s impact on the federal judiciary. The first post (here) looked at how Democrats changed two long-standing confirmation process norms. This one considers another and what Biden accomplished despite such radical changes.
In addition to dramatically increasing opposition to virtually all judicial nominations, Democrats also made systemic partisanship a prominent feature of the confirmation process. Before Trump took office, senators of one party voted against an average of 2 percent of the other party’s judicial nominees. The average Senate Democrat, for example, voted against 1 percent of President Ronald Reagan’s judicial nominations, and the typical Senate Republican opposed 2 percent of President Bill Clinton’s.
Democrats upped that level of opposition 20-fold, transforming partisan opposition into a routine practice, when President Donald Trump took office. The average Democrat voted against 41 percent of Trump judicial nominees, and the typical Republican has opposed 78 percent of Biden’s. These are some of the confirmation process norms that Democrats changed in creating the process we see today.
Biden’s judicial appointment total of 235 is second only to President Jimmy Carter’s 258 during his 1977-80 term. Carter, however, had two advantages. First, Congress created 151 new judgeships in 1978, the largest judiciary expansion in history. Second, the judicial confirmation process at that time was a well-oiled machine; 98 percent of his nominees were confirmed without even a recorded vote.
Not surprisingly, most of Biden’s judicial nominees received a “well qualified” rating from the American Bar Association. While the ABA has been rating prospective or current judicial nominees since 1948, the credibility of those ratings has steadily suffered as the ABA has taken consistently liberal positions on a host of political and ideological issues. That ideological bias has demonstrably affected its judicial nominee ratings. In fact, at least four studies (here, here, here, and here) have shown a clear pattern of Democratic nominees receiving higher ABA ratings than comparably qualified Republican nominees..
The ABA’s official rating for a nominee is the majority rating of its 15-member evaluation committee. Based on the ratings posted on the ABA’s website, 83 percent of Biden nominees received a “well qualified” rating. The very ideological bias that makes this less surprising, however, makes even more impressive the 87 percent of Trump nominees who received the ABA’s highest rating.
Another way of measuring the impact of a president’s judicial appointments is by considering not only the number of appointees, but the party of the judges those appointees replace. It’s obviously a generalization, but Republican and Democratic presidents favor different kinds of judges. Biden appointed 45 judges to the U.S. Court of Appeals, fewer than Trump’s first term but more than in any previous single term except Reagan’s second term and Carter’s, after Congress created new judgeships. Still, 80 percent of Biden’s appeals court judges replaced Democratic appointees, a higher percentage of same-party picks than his three predecessors (Trump 65 percent, Obama 45 percent, and G. W. Bush 75 percent).
Biden’s impact on the judiciary is significant not only considering the more cumbersome and divisive confirmation process that Democrats created, but because he began his term with relatively few vacancies to fill. Republicans controlled the Senate during Trump’s first term, reducing the number of vacancies from more than 100 when he took office to 46 when Biden took over in January 2021. That was the lowest vacancy total for any new president since George H. W. Bush in 1989. Nonetheless, an average of 45–50 judges leave their appointed positions each year, and Democrats worked to fill as many vacancies as possible.
Working together, Biden and the Senate Judiciary Committee showed how much they can accomplish. In the 119th Congress, which begins on January 3, Republicans will again control both the nomination and confirmation stage of the appointment process and should be determined to follow Democrats’ example.