Biden has done great with judges — but the election looms over the courts

Despite there only being one current appellate vacancy in the nation, conservative control of the Supreme Court and many lower federal courts keeps courts central.

President Joe Biden and the Senate Democratic leadership have done an incredible job of filling federal appeals court vacancies.

Thus far, 44 Biden nominees have been confirmed to appeals court judgeships. They are more diverse — demographically and professionally — than any other appeals court nominees in history. As of today, moreover, there is only one current appeals court vacancy in the nation.

This is extremely important, given that the federal appeals courts set the law in wide swaths of the nation until the U.S. Supreme Court takes up a matter — and often are the last word, given how few cases the Supreme Court hears.

And yet, the full picture includes the 6-3 makeup of that Supreme Court, where Republican appointees have taken charge of the law and Americans’ lives, with no end in sight — a supermajority that restricts the power of those lower court judges, at least the liberal ones.¹

The full picture also is one of many courts substantially controlled by Republican appointees — some dramatically so. There also are vacancies, dozens if one looks down into the district court level as well, that will remain empty on January 20, 2025, for the next president to fill — or, at least, attempt to fill.

The next president will have big decisions to make about the courts — and I wholeheartedly support Vice President Kamala Harris pushing for big changes if she wins — but there also, in the interim, will be important decisions about how the next president will nominate judges to the federal courts. And what the Senate will do with those nominations.

Those decisions, as the past four years have shown, will matter to everyone.

The appellate story

In comparison with Biden’s 44 appellate confirmations, Donald Trump and Senate Republican leadership confirmed 54 people to appeals court judgeships during his full term. In addition to that, of course, Trump was able to secure three appointments to the U.S. Supreme Court, while Biden has only had one Supreme Court confirmation.²

All of that, however, has to be taken in context. Trump took over after eight years of the Obama administration, so there likely were a number of judges who had been waiting to take senior status under a Republican president. There also was the fact that Republicans controlled the Senate during the final two years of Barack Obama’s time in office, slowing and eventually blocking consideration of judicial nominees altogether. It wasn’t just Mitch McConnell’s decision to block consideration of Merrick Garland’s nomination for the Supreme Court in 2016. Only two appeals court nominees were confirmed during the entire two last years of the Obama administration.

When Biden took office in 2021, he, along with White House chief of staff Ron Klain and White House counsel Dana Remus, prioritized judges. They prioritized getting them nominated, as well as demographic diversity and — for the first time, systematically, ever — professional diversity. Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chair Dick Durbin prioritized getting those nominees confirmed.

It worked — particularly as to the appeals courts.

The one current appellate vacancy is a disappointing, albeit principled, vacancy. After Judge Joseph Greenaway Jr. retired from the U.S. Court of Appeals for the Third Circuit in June 2023, Biden nominated Adeel Mangi for the seat in November 2023. In the year since, Mangi has faced a disgusting campaign to prevent his confirmation that included significant anti-Muslim attacks. Despite strong support from Biden and Durbin — Mangi was reported out of committee with support from all of the committee’s Democrats — the nomination has been kept from a vote because of opposition expressed earlier this year by Democratic Sens. Catherine Cortez Masto and Jacky Rosen of Nevada and Sen. Joe Manchin of West Virginia.

The trio and whatever other senators are hiding behind them should be ashamed of themselves, and it’s good that Biden didn’t give in. That said, the court currently has seven Republican appointees and six Democratic appointees, so their intransigence didn’t only hurt Mangi — it kept Democrats from making the court evenly divided.

Although Greenaway’s former seat is the only appellate vacancy in the country, there are five appeals court judges across the country who have announced their decision to take senior status, a sort of semi-retirement at which point another judge takes their active seat on the court and they can take a reduced caseload. Four judges have announced they will be taking senior status contingent on the confirmation of their successor: Judges William Kayatta Jr. (First Circuit), James Wynn Jr. (Fourth Circuit), Jane Branstetter Stranch (Sixth Circuit), and Charles Wilson (Eleventh Circuit). Biden has announced a nominee for all four of those spots, with three awaiting a vote from the full Senate. The fourth nominee is still in the Judiciary Committee.

The final forthcoming vacancy actually is in the Third Circuit. Judge Kent Jordan, a Republican appointee, will be retiring on January 15, 2025. At that point, assuming Mangi has not been confirmed, the Third Circuit will be down two active judges and will be evenly divided between six Democratic appointees and six Republican appointees.

In all, and as I wrote when the election was six months out, the appeals courts remain unbalanced. Despite Biden’s successes, the U.S. Court of Appeals for the Eighth Circuit — which runs up the center of the country from Arkansas to North Dakota — still has only one Democratic appointee (an Obama appointee). The far-right U.S. Court of Appeals for the Fifth Circuit — which runs from Texas through Louisiana to Mississippi — was infused with six Trump appointees, while Biden only got two appointees. The conservative U.S. Court of Appeals for the Eleventh Circuit — which includes Alabama, Florida, and Georgia — also got six Trump appointees, whereas Biden has one appointee confirmed with another, who would replace a Democratic appointee, pending.

And yet, as with Trump, a key aspect of Biden’s nominations is the fact that he — even when replacing a Democratic appointee — is almost invariably putting a judge on the appeals court who is substantially younger than the judge they are replacing. And, on some courts, that move is huge. On the U.S. Court of Appeals for the Sixth Circuit, which now consists of nine Republican appointees and seven Democratic appointees, four of those Democratic appointees are Biden appointees. Two of them, Judges Andre Mathis and Rachel Bloomekatz, were born in the 1980s. On courts where Democratic appointees are in the majority, that is just as key to judging Biden’s success in his appointments. On the U.S. Court of Appeals for the Ninth Circuit, where the oldest active judge was born in 1942, Biden named eight appointees — the youngest two of whom were both born in 1979.

The racial diversity successes have been covered extensively, but they bear repeating. Twenty-eight of the appellate appointees have been people of color, with 13 Black women confirmed to 10 appellate courts and the Supreme Court. This was a dramatic improvement that changed what so many courts across the country look like — who is judging our cases.

The professional diversity efforts also have shown real results. When Biden took office, the only active appellate judges with substantial public defender experience were Judges Jane Kelly (Eighth Circuit), Luis Restrepo (Third Circuit), and Robert Wilkins (D.C. Circuit). Now, Biden has added judges — sometimes multiple judges — to the First, Second, Third, Seventh, and Tenth circuits who have significant public defender experience. And, of course, with Jackson’s confirmation to the Supreme Court, America has a former public defender on the high court.

The district court story

Biden’s district court movement has been slightly less stellar, primarily due to the continued reliance on home-state senator recommendations for district court nominations and the Senate Democrats’s adherence to blue slips for district court judgeships — by which a senator can block a nominee from their state moving forward. (I’ve argued previously that blue slips should go and maintain that they must.)

The overall district court numbers are good, don’t get me wrong. Biden has thus far appointed 166 district court judges, while Trump appointed 174. There are 13 Biden district court nominees awaiting a vote from the full Senate, with another 10 having been nominated (and two more announced this week).

That said, there are 27 district court vacancies currently — including five in Texas and four each in Louisiana and Missouri — that have no nominee, with another nine district court judges having announced that they are taking senior status (including two more in Texas) that are yet to have a nominee announced.

The bottom line

A lot of what happens now is, as with so much, contingent on what happens in the election.

But, if Trump were to win the election and the Senate Democrats are not able to get any more nominees confirmed in the lame-duck session, that would mean that Trump would go into office with at least two appeals court vacancies on the Third Circuit — the contingent decision of the other judges to take senior status could be withdrawn — and 54 district court vacancies (under the same logic).

On the other hand, if Vice President Kamala Harris wins, the lame-duck Senate might be more able to confirm more of these nominees, particularly if Democrats keep the Senate.

And, then, whoever wins will have authority to act on all that follows — new vacancies, new nominations, and so much more.

1. As I’ve often discussed, that is not so when it comes to the far-right judges on the lower courts — many of whom have taken a message of empowerment to ignore precedent when they think this current court would overturn the precedent.

2. Both presidents had one double-confirmation among those groups, with an appellate appointee later becoming a Supreme Court justice. For Trump, it was Justice Amy Coney Barrett, who Trump earlier named to the U.S. Court of Appeals to the Seventh Circuit. For Biden, obviously, it was Justice Ketanji Brown Jackson, who Biden initially named to the U.S. Court of Appeals for the D.C. Circuit.