On judicial nominations, Biden’s term has been a failure

This week President Biden announced a series of U.S. Supreme Court “reforms,” presumably to distract from the fact that his administration is failing on judicial nominations. Despite desperately seeking to appoint more judges than Donald Trump — who appointed three U.S. Supreme Court justices and 231 other life-tenured federal judges — Biden is unlikely to surpass Trump in quantity, and certainly in terms of jurisprudential impact.

This is occurring despite Biden having inherited significant procedural advantages over him in the U.S. Senate.  

At the outset of the Trump administration, all appellate judicial nominees required the support of both home-state senators. While Republican Leader Mitch McConnell (R-Ky.) and then-Senate Judiciary Chairman Chuck Grassley (R-Iowa) immediately recognized the challenges this imposed, the policy remained in place for nearly a year. Over that period, Trump secured the support of Democrat home-state senators for the nominations of eight federal appellate nominees, including now-Justice Amy Coney Barrett. 

But in the face of Democratic obstruction, this policy was subsequently abolished. This spared Biden from the beginning from ever needing to take the opinion of home-state senators into account. Senate Judiciary Chairman Dick Durbin (D-Ill.) has therefore never required Republican home-state support to hold a hearing. Just ask Republican Sens. Marsha Blackburn and Bill Hagerty of Tennessee about Biden’s nomination of three home-state Court of Appeals judicial candidates over their objections.

With Biden’s term nearly over, only four of his appellate judges have secured the support of both Republican home-state senators. In other words, it has taken Biden nearly four times as long to produce half as many consensus appellate judges as it took Trump.    

Following a hearing, the Senate holds a confirmation vote on each nominee. Under Trump, the Senate required 30 hours of floor time to confirm district court nominees. Democrats used this rule to effect unprecedented obstruction of almost all judicial nominations, forcing McConnell to prioritize appellate court nominees and only move district court nominees in fits and spurts as part of session-ending packages.

In response to this Democratic obstruction, Republicans changed the rule. As a result, under Biden, Majority Leader Chuck Schumer (D-N.Y.) has required only two hours of floor time for district court nominees. In practical terms, it took 15 times longer for the Senate to confirm a Trump district court nominee during the first half of his administration than it took Biden on Day One. 

In terms of impact, Trump made the Supreme Court more conservative and brought Republican-appointed majorities to the federal courts of appeals based in New York City, Philadelphia and Atlanta. Trump also achieved what was once unthinkable by bringing near ideological parity to the Ninth Circuit in San Francisco through the appointment of 10 appellate judges — more than one-third of the active court. 

Compare that to Biden, who has made no significant ideological impact on the federal judiciary. On the Supreme Court, he replaced a single liberal Justice with a younger version of the same and made the federal appellate judiciary in blue states bluer. For example, 35 of Biden’s 43 appellate judge appointees replaced Democratic appointees. And most of the eight Republican appointees he replaced weren’t very conservative anyway.

In contrast, only 35 of Trump’s 54 appellate judges replaced Republican appointees. And many of the 19 Democrats he replaced were both very liberal and replaced by appointees who are very conservative. For example, Trump’s replacements of Judge Boyce Martin with Judge Amul Thapar on the Sixth Circuit, Judge Terry Evans with Judge Mike Brennan on the Seventh Circuit, and Judge Harry Pregerson with Judge Dan Collins on the Ninth Circuit come to mind.

Trump’s achievement is even more remarkable given that, until this month, Biden commanded lockstep Democratic support in the Senate for even his most radical judicial nominees — something Trump rarely enjoyed from all Senate Republicans. 

In sum, despite inheriting significant procedural advantages over Trump, the Biden judicial nominations project can be charitably analogized to four years of running in place. This is why the 2024 presidential election is so important for the future of the courts. For all the talk of Trump attacking judges, the retirement data prove that the federal appellate judiciary trusts him more than it trusts the current regime. 

Robert Luther is a Distinguished Professor of Law at the Antonin Scalia Law School at George Mason University and served as Associate Counsel to the President in the White House Counsel’s Office from 2017-18, where he focused almost exclusively on judicial nominations.