Biden judicial appointment status report — topping Trump seems impossible

The Supreme Court’s new term brings typical speculation over precedents at risk and less typical speculation about new revelations over arguably sketchy behavior. But there is also speculation over what sort of mark the Biden administration can put on the workhorses of the federal judiciary — the 91 district courts and 13 courts of appeal.

Democrats celebrated in June when President Biden’s 100^th district court confirmation outpaced former President Trump’s mark at the comparable point. But Biden is unlikely to outpace Trump’s four year numbers, due partly to circumstances beyond the administration’s control, namely a lack of fillable vacancies. This post, updating previous reports (e.g., here), assesses how the administration’s total judicial appointments during its first four years might compare with those of recent predecessors. Trump’s ranking in four-year confirmations, second only to Carter, seems secure. Biden’s four-year total may, though, exceed those of Clinton and George W. Bush.

At end of third-year August recess

Figure 1 compares the administration’s district and circuit confirmations with those of Biden’s four most recent predecessors.

The bars show, first, confirmations from Inauguration Day through the third-year April recess; next up, those occurring between that recess through the third-year August recess; and, for Biden’s predecessors, confirmations from that point through term’s end. The parentheses show confirmations at the end of the third-year August recess (e.g., 163 for Clinton) and total confirmations at the end of four years.

For the record, Carter appointed the most circuit and most district judges. Kennedy holds the record for first-year appointments, but Biden’s current total almost matches the JFK-LBJ four-year total of 148; Biden will likely top Reagan’s and the first Bush’s totals as well.

Biden’s 139 confirmations at the end of the August recess are lower than all but Obama’s. Although Trump’s 95 appointments as of the April 2019 recess were comparatively low, the Senate churned out 49 confirmations over the summer, outpacing recent predecessors — and Biden — in the comparable periods.

Biden’s challenge through 2024

Trump’s four-year totals were 54 circuit and 177 district confirmations. His appointees are 31% of full-time court of appeals judges and 28% of such district judges — and their impact is evident in current litigation controversies. The number of appointments matters.

Biden needs some combination of district and circuit confirmations totaling 92 to match Trump (he needs 62 and 64 respectively to match Clinton and Bush).

Because different dynamics are at play, it helps to assess his court of appeals and district court challenges separately. To match Trump, he will need 18 more circuit confirmations and 74 more district confirmations.

Court of appeals

Biden’s 36 circuit confirmations already exceed the four-year totals of Clinton, Bush, and Obama, but not Trump. To get 18 more confirmations to match Trump’s 54, he would have to out appoint all four predecessors in their comparable time periods.

Five court of appeals nominations are pending, and three more vacancies (in place or announced) await nominees. Even if — despite his precarious Senate majority — Biden fills all eight vacancies, he will need 10 more appointments to match Trump’s four-year total.

Ten appointments require at least 10 more vacancies. Judges create vacancies when they leave active status, which few do before they meet age and length-of-service requirements that allow them to leave with either a salary (as senior-status judges, the usual route) or an annuity (by retiring completely).

The most likely source of more vacancies are 16 Democratic appointees who are eligible to leave active status with a salary or annuity but have not done so. They are not rushing for the doors: 15 of the 16 were eligible at the start of the year (one of that 16 has gone senior and another judge became eligible). Five of the 16 have been eligible for at least 10 years, eight for at least five.

For 10 to leave active status in time for Biden to replace them would be unprecedented. Table 1 shows that none of Biden’s recent predecessors saw 10 vacancies occur in the comparable period. And even though three of the four predecessors had Senate majorities, only Trump was able, by the end of the fourth year, to fill a majority of those vacancies, seven of nine. He did so with a three-vote majority in the Senate and a December 2020 post-election confirmation to replace circuit judge Amy Barrett after her Supreme Court appointment.

To buck history by getting and filling ten more court of appeals vacancies before the end of 2024, Biden will have to fill at least some vacancies in states with Republican senators (eight of the 16 potential vacancies are in such states). Even though home-state senators no longer enjoy the virtual veto power over court of appeals nominations once provided by the so-called “blue slip” process, submitting circuit nominations for seats in red and purple states have generally required more time, and time is running out. During Biden’s nearly three years in office, his 13 circuit nominees to seats associated with one or two Republican senators were submitted in 220 median days after the vacancy announcement as opposed to 126 median days for nominees to seats with two Democratic senators or no senators. (There are exceptions: a seat in deep-blue Maryland has gone nominee-less for over a year, and some nominations to red-or-purple state seats have gone smoothly.)

We don’t know what kind of planning, if any, is going on to prepare for vacancies that could be coming, but the window is narrowing to pull off an unprecedented spate of late term appellate confirmations.

District courts

At the end of the third-year August recess, Biden had 103 district confirmations compared to Trump’s 101. Trump’s 76 confirmations from August recess end through his fourth year were more than any recent predecessor. (Trump also out-nominated his predecessors — 68 post-August district nominees, compared to 55 for Obama, 43 for Clinton, and 28 for Bush.)

Biden’s first step in getting 74 more district appointments and thus matching Trump’s 177 is confirming the 33 pending nominees (as of early October). Three of the 33 have been waiting for over 400 days — one presumes the votes aren’t yet there to confirm — compared to a median 126 days for the others (excluding post-August nominees). Although some Biden appointees waited as long or longer for confirmation, some pending nominees will likely not make it.

Biden will thus look for upwards of 40 more confirmations of nominees to the 60 current and announced vacancies, as well as additional vacancies that will occur.

To get there, he will probably have to get more nominations in states with Republican senators, even though, to date, such nominations have been time-consuming. To date, his 18 nominees to districts with Republican senators took 495 median days from vacancy to nomination —compared to 247 median days for the other 123 nominations. (Home-state senators’ blue-slip veto is, as of now, still in place for district nominations.) Of the 58 nominee-less vacancies, 39 are in states with Republican senators. Biden will have either to engage more Republican senators (and submit nominees whom they will not veto) or hope that more vacancies occur in blue and purple states — or in senator-less jurisdictions.

At least two other considerations may help foretell Biden’s chances of matching Trump’s late term district confirmations.

First, Biden has a slimmer Senate majority than Trump had, and the confirmations have been more contentious. Although the median no votes for Trump’s circuit confirmations were 43, they were only 14 for his district judges. So far, Biden’s district and circuit nominees have both had median 43 no votes, leaving less room to maneuver. A few dissenting Democrats can scuttle a nomination.

Second, under Trump, the Senate left in the dust the misleadingly labelled “Thurmond Rule” dictating that confirmations stop at some point roughly around the middle of presidential election years. Thirteen of Trump’s district judges were confirmed after October, six in December. Precedents are hardly iron clad, but Biden will likely have the longer window that the Trump Senate created.

Concluding

Confirmation numbers aren’t the whole story. Fuller analyses will account for the diversity of Biden’s nominees, both demographic and professional, and shifts in the judiciary’s party-of-appointing president balance. But confirmation numbers are basic.