The Senate is back in Washington for two more weeks before adjourning until after the November election. Majority Leader Chuck Schumer (D., N.Y.) says Democrats will try to beat former president Donald Trump’s judicial appointment total. Here’s where the confirmation process stands today and how it might play out in the next few months.
The Judicial Appointment Tracker shows that, as of today, President Joe Biden has appointed 210 judges to life-tenured federal courts (163 district, 44 appeals, 2 International Trade, 1 Supreme) compared to Trump’s 216 at the same point (159 district, 53 appeals, 2 Int’l Trade, 2 Supreme). The Senate’s executive calendar lists 12 district court and five appeals court nominees waiting for floor votes. If the Senate confirms all of them this year, Biden’s full-term total will be 227, the third-highest appointment total for a single presidential term in American history, behind only Trump (234) and Jimmy Carter (258).
Fifteen nominees are pending in the Judiciary Committee, and Chairman Richard Durbin (D., Ill.) says he will continue holding hearings. Several district court nominees, however, have already sat for several months without a hearing and may be, for whatever reason, too controversial to move forward. The election result, for both the Senate and the White House, will determine whether and with what force the confirmation process continues after November 5.
If Kamala Harris (a proxy for the incumbent in this scenario) loses and Democrats lose their Senate majority, there will be considerable pressure to confirm more Biden nominees before the 118th Congress finally adjourns. In 2020, when the incumbent president lost his bid for re-election and his party lost its narrow Senate majority, the Judiciary Committee held two more hearings for a total of five nominees, and the Senate quickly confirmed four of them.
If Harris wins and Democrats retain Senate control, confirmation pressure will be less because she can re-nominate, and the Senate can confirm, nominees left pending. In 2012, the incumbent president and his party retained control, and, while the Judiciary Committee held one more hearing for four nominees, the Senate confirmed no more judges. President Barack Obama re-nominated them at the start of his second term, and the Senate confirmed them within a few months.
On average, twelve judges take senior status, vacating their appointed seat, between September 17 of a presidential election year and Inauguration Day. If that pattern holds, and the Senate confirms the nominees currently ready for a confirmation vote, the next president will have about 40-45 vacancies to fill when he or she takes the oath of office, the lowest since President George H. W. Bush in 1989. Another 20 judges, on average, take senior status during a new president’s first six months; Biden saw 33 judgeships open up during that period.
The number of judges a president appoints is, by itself, an inadequate measure of his or her impact on the judiciary. More than 60 percent of the current judicial vacancies, for example, had been filled by Democrat appointees. If Democrat and Republican presidents, at least in general, appoint judges with different views of their own power and the proper method of deciding cases, the overall philosophical balance of the judiciary will shift more if a Republican, rather than a Democrat, fills these vacancies.