The first and second posts in this mini-series described how President Biden’s 42 first-year district and court of appeals confirmations are second only to President Kennedy’s. Biden used early and tactical nominations and had (and needed) a united, filibuster-free Senate majority. His appointees filled proportionately more judgeships than most recent presidents and showed striking demographic and vocational diversity.
Despite the conventional sense that presidents get less done as mid-term elections loom, all recent presidents, except Kennedy, have appointed at least as many judges in their second year as in their first. Most recent presidents, however, had meager first-year numbers.
How many second-year confirmations Biden achieves and how much he changes the judiciary’s make-up depends on how many pending nominees get confirmed, how many current and future vacancies get filled, and which judges create the vacancies. It is hard to say, as explained later, whether filling Justice Breyer’s vacancy will slow the pace of lower court confirmations.
If Biden could fill all current and announced future vacancies, he would have appointed 156 judges in his first two years, more than any president—but Republican appointees would likely remain a majority among active-status court of appeals judges.
Vacancies with nominees
Thirty-nine nominations were pending on January 31. Confirming them would raise Biden’s two-year number to 81. Those confirmations would continue to change the party-of-appointing balance on the district courts, but not the courts of appeals.
Beyond nominees in place are 59 district and 14 appellate vacancies without nominees (including vacancies that incumbents have announced they will create on some future date).
The administration’s initial target will likely be the 31 district vacancies in courts with two Democratic, or no, senators. The administration has nominated almost exclusively to such courts, thus avoiding dealing with home-state Republican senators.
Republican appointees, however, created only three of the 14 nominee-less court of appeals vacancies, and one, a Michigan judge, is a Republican appointee in name only, appointed by Bush as part of a compromise. The other vacancies are in Pennsylvania and Rhode Island.
If the Senate confirmed all 39 pending nominees and Biden submitted, and the Senate confirmed, nominations for all current nominee-less vacancies, Biden’s two-year total would be 156 appointments, easily outdistancing all his recent predecessors.
One-hundred and fourteen second-year confirmations would require a confirmation roughly every three days through the end of the year. The pace in 2021 was one every eight days, but the confirmation machinery was not in place the full year. Clinton appointed 99 in his second year, albeit in a different era—all but a handful were confirmed unanimously.
Even with those 156, Biden would still replace only six Republican-appointed circuit judges. Trump appointed about the same number of circuit judges in 2017-18 (30 versus Biden’s projected 33, but 11 of Trump’s 30 replaced Democratic appointees). Additional vacancies in 2022 might include Republican-appointed circuit judges, but, more likely, the possibility of Republicans taking control of the Senate will heighten Republican appointee disinterest in creating vacancies before 2023. Rather, expect an uptick in Democratic appointees’ leaving in order to give the Democratic Senate a chance at confirming replacements. An early example, the 83-year-old but healthy Justice Breyer.
Other factors may constrain Biden’s second year numbers.
First, how much, if at all, will replacing Justice Breyer slow district and circuit confirmations? Filling a Supreme Court vacancy consumes time and energy as soon as the vacancy is announced, but the experience of recent vacancies is that lower court confirmations don’t necessarily move at a slower pace while a Supreme Court confirmation is pending.
Seven of the 14 Supreme Court vacancies since 1981 are roughly analogous to the Breyer vacancy. (Four others occurred at the start of an administration, and three were the prolonged, multi-nominee, vacancies after the 1986 Powell retirement and the 2005 O’Connor retirement and Rehnquist death).
Table 4 shows the seven vacancies similar to Breyer’s. It shows, for example, that the vacancy that Scalia would fill was announced on June 18, and Scalia was confirmed on September 17. During those 91 days, the Senate confirmed 6 lower court judges, on average one every 15 days, compared to one roughly every 5 days during the rest of the 1986 legislative session.
For four of the seven, lower-court confirmations moved at a faster pace during the Supreme Court vacancy-to-confirmation pendency than during the rest of the session. This is not the place to try to sort out the explanations for the variations. It is enough to say that the Breyer vacancy will not necessarily slow lower court confirmations (especially if the administration and Senate leadership seek, as some have said, to move his replacement as speedily as Ginsburg’s).
Second, will the administration be able to submit nominees for all the vacancies? Republican home-state senators can no longer veto nominees, but Republican objections are not the only impediment to prompt nominations. The 243 median days in 2021 between district vacancy creations (Inauguration Day for pre-existing vacancies) and nominations obscures the range of 57 days to 364—329 in New York, for example. The range for court of appeals nominations was 34 to the 332 days (the 332 for a nomination for a vacancy in the no-senator D.C. circuit).
Third, will the unified Democratic Senate majority hold in 2022? No Democratic senator voted against any nominee in 2021, but some centrist Democrats might think twice about voting for a controversial nominee with the mid-terms looming. Or some patronage-conscious Democratic senators might be swayed by Republican colleagues’ complaints over lack of consultation—especially complaints more cogent than one senator’s about a Biden nominee to the Sixth Circuit’s appellate court. Beyond those concerns, 12 members of the paper-thin Democratic Senate majority represent states where a Republican governor could appoint a Republican successor upon a death or resignation. Three Democrats represent states that require a special election to fill a vacancy, providing Republicans a 50-49 majority at least until the election.
2023 and Beyond?
If Republicans gain the Senate majority next November (or earlier), confirmations will all but cease. That is the lesson from 2015 and 2016, when Republicans controlled the Senate with a Democrat in the White House and the Senate throttled most nominations, not just Merrick Garland’s.
Those were the Obama administration’s lame-duck years, but the 2015-16 confirmation numbers and rates were well below those under Reagan, Clinton, and W. Bush, which also saw, as in Obama’s final two years, different parties controlling the White House and Senate.
The Biden administration is clearly off to a propitious start in its efforts to reshape the federal judiciary, both by numbers and types of nominees. Time will tell whether it can maintain the momentum in the 2022 election year. It surely won’t if the Senate changes hands in 2023 (or earlier).