President Joe Biden has a good chance to outdo President-elect Donald Trump‘s 234 federal judgeship confirmations thanks to an agreement between Senate Republicans and Democrats this week.
A deal struck by Senate leadership this week gives Biden a shot at confirming as many judges as Trump did, in exchange for leaving four appellate court seats open when the new president assumes office. The number of judges confirmed under Biden stands at 221, following a series of judicial confirmations that were made possible in part due to absences of GOP lawmakers in the upper chamber over the past week.
“It looks like the Biden administration is going to best the first Trump administration in terms of the amount of judges that are seated on the federal courts by the end of his term,” said Devon Westhill, president and general counsel at the Center for Equal Opportunity.
Senate Democrats now have the opportunity to confirm 12-14 judicial nominees, all of them for district courts, in the final weeks before Christmas and could nudge Biden to 235 confirmations compared to Trump’s 234.
Biden had confirmed 173 district court judges and 45 appeals court judges as of Friday, whereas Trump confirmed 174 district judges and 54 appellate judges during his single term. Biden will not outnumber Trump’s 54 appellate court nominees and will not best him on the Supreme Court, having confirmed one justice versus Trump’s three justices in a single term.
Senate Judiciary Committee Chairman Dick Durbin (D-IL) told reporters Thursday that he was unsure whether Biden would match or surpass Trump’s figure in the coming weeks, but he touted the developments as “nothing short of miraculous” for Biden’s judiciary streak.
The trade-off for Biden is that four of his circuit court nominations, whom Senate Majority Leader Chuck Schumer (D-NY) did not have the votes for confirmation, will be sidelined as part of the deal.
Those Biden circuit court nominees who have been effectively derailed include Adeel Abdullah Mangi, of New Jersey, nominated for the 3rd Circuit Court of Appeals; Karla M. Campbell, of Tennessee, to the 6th Circuit; Julia M. Lipez, of Maine, to the 1st Circuit; and Ryan Young Park, of North Carolina, to the 4th Circuit.
For some of those nominees, confirmation was already a challenging prospect. Republicans opposed Mangi for months, citing his links to a contentious university research program and a prison reform nonprofit organization. The White House unsuccessfully attempted to push back on the GOP opposition to Mangi, who is Pakistani American, as Islamophobic.
Still, support for Mangi eroded within Democratic ranks. In March, Sens. Catherine Cortez Masto (D-NV) and Jacky Rosen (D-NV) withdrew their backing, leaving Mangi’s nomination stalled for months. Until Thursday, however, Senate Democrats maintained that a confirmation vote would eventually take place.
University of Richmond Law professor Carl Tobias told the Washington Examiner that he did not see the deal as a “win-win” for either side, underscoring his belief that Biden’s circuit court nominees still had a shot of clearing the Senate had Democrats unified behind some of the nominees Republicans sought to blockade.
“Except for Mangi, who is more controversial, I think it’s fair to say that for the other three — there might have been close votes — but I think they would have looked like the last two [judges] they took,” Tobias said, referring to two district court nominees the Senate confirmed this week in 50-49 and 50-48 votes.
Despite Trump gaining as many as four coveted appeals court picks, his ability to fill those seats greatly depends on whether a pair of Democratic-appointed judges follow through with their retirement decisions announced before the election.
U.S. Circuit Judges James Wynn, 70, of the 4th Circuit, and Jane Branstetter Stranch, 71, of the 6th Circuit in January decided to take senior status to begin the process of having a successor named in their place. Judges in recent years have increasingly timed their retirements based on the party of the president who will appoint their successors.
Sens. Marsha Blackburn (R-TN) and Bill Hagerty (R-TN) released a joint statement Friday expressing their hope that those judges will not renege on their retirement plans and “inappropriately turn federal judgeships into partisan offices.”
Trump also faces uncertainty as to how many judges he can confirm in his final term, but it is clear he will not achieve the same record as before.
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Because there will be fewer vacancies in the judiciary under Trump in his second term, Westhill said the incoming president should prioritize confirming “really strong originalist judges” to add to his already formative judiciary work from the first term. Conversely, Biden focused on appointing judges who bring a variety of cultural diversity and work background, setting records as a president with the most nonwhite judicial confirmations, capped by his pick of Justice Ketanji Brown Jackson to the Supreme Court, a former public defender and the first black woman on the bench.
There are 41 vacancies and 13 pending nominees, though Tobias said there could be as many as three dozen appeals court judges appointed during past Republican administrations who may enter senior status throughout the next four years.
