The most enduring legacy of Donald Trump's presidency are the 234 judges he installed in the federal courts, amounting to more than a quarter of America's judiciary and a third of the Supreme Court. Now that Democrats have retained control of the Senate, Joe Biden can make a mark of his own.
Biden has already seated 85 judges, including 25 to the powerful circuit courts of appeal and one — Ketanji Brown Jackson — to the Supreme Court.
Whereas Trump's judges style themselves as "originalists" — followers of what they take to be the original meaning of the constitution — Biden's appointees largely eschew labels. Leah Litman, of the University of Michigan, says the 85 are "quite moderate and cautious," in contrast to Trump appointees who "pen opinions suggesting courts should radically revisit the law."
Two caustic examples are James Ho of the Fifth Circuit Court of Appeals, who has opined on the "moral tragedy of abortion," and Lawrence VanDyke of the Ninth Circuit, who in January mocked his colleagues by filing a bizarre faux opinion in a case involving Covid restrictions and the right to bear arms.
The less ostentatious jurists who have joined the federal bench under Biden are the most diverse in history. Of the 85, 64 (or 75%) are women. Nearly a quarter are African-American; two-thirds are non-white. Trump's judges are mostly male (76%) and white (84%).
Biden is taking a cue from his predecessor on youthfulness: the average age of his nominees is 47; two recent choices for appeals-court seats are still in their 30s. According to Russell Wheeler of the Brookings Institution, a think-tank, more than a third of Biden's first-year appointees had worked as public defenders, including then-Judge Jackson. Progressive lawyers focusing on racial equality, voting rights and reproductive liberty have been in the mix, too
In 2022 Biden has nominated more former prosecutors (six, up from two in 2021). John Collins, of George Washington University law school, sees this as a sign he is reaching out to Republican senators to "keep the nomination pipeline flowing". Collins notes that several former prosecutors — Cindy Chung in Pennsylvania, Doris Pryor in Indiana and Jabari Wamble in Kansas — have nominations pending for seats in red or purple states. Justice Jackson's vacant seat on the D.C. Circuit Court was filled by Florence Pan, a moderate who clerked for a conservative judge. On one occasion Biden's deference to Republicans spurred a backlash among his supporters, and he backtracked on plans to nominate an anti-abortion judge in Kentucky as part of an ill-fated deal with Senate Republican leader, Mitch McConnell.
Biden's aisle-crossing appeals may have helped smooth the path for his judicial nominees in a 50-50 Senate. None has been voted down. Most have received some Republican support. Only a handful of votes in the Judiciary Committee have split down the middle, spurring "discharge petitions" to get the nomination to a full Senate vote. And only once has vice-president Kamala Harris been needed to break a tie.
