President Joe Biden is on track to match and possibly surpass his predecessor in successfully appointing lower court judges.
Biden announced his 47th round of nominees for vacancies on federal district and appeals courts in late March, bringing his total nominations to 229. That’s just 10 fewer nominees than Donald Trump had at this point in his presidency in the spring of 2020.
Biden’s latest nominees include Kevin G. Ritz to be a judge on the 6th U.S. Circuit Court of Appeals as well as four choices for District Court vacancies.
The nominees “ensure that the nation’s courts reflect the diversity that is one of our greatest assets as a country—both in terms of personal and professional backgrounds,” the White House said.
Biden now has a total of 190 confirmed judges out of the 229 total nominations, according to The Heritage Foundation’s Judicial Appointment Tracker. (The Daily Signal is Heritage’s news and commentary outlet.)
At this point in his four-year term in spring 2020, Trump had nominated 239 federal judges, 193 of whom were confirmed by the Senate.
Ultimately, Trump got 234 judges confirmed in a single term as president, counting his three successful appointments of Supreme Court justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Biden appointed and won confirmation of Ketanji Brown Jackson in 2022 as a justice on the high court.
In the raw total of confirmed judges, Biden and Trump essentially are tied, but the former president got 54 appellate judges confirmed during his four years in office. So far, Biden has just 41 judges confirmed to appeals courts.
“That’s not to say that district courts aren’t important, but most precedent and most law is made on appeals courts, since the Supreme Court accepts so few cases,” said Curt Levey, president of the Committee for Justice, a conservative legal group.
By contrast, over two terms President Barack Obama managed to get 329 judges confirmed, including two Supreme Court and 55 circuit judges. At this point in his presidency, spring 2012 in his first term, Obama had made 141 judicial nominations that were confirmed by the Senate.
“Biden will be viewed by progressives as more successful than Obama, who had such a low number of confirmations,” Levey told The Daily Signal. “Also, past Democratic presidents appointed mostly establishment liberals. Biden has gone out of his way to appoint activists and ideologues.”
It will be a challenge for Biden to catch Trump in lower court confirmations by the end of the year, but the Senate’s 51-seat Democrat majority potentially could do it, said Thomas Jipping, a senior legal fellow with The Heritage Foundation who previously was chief counsel for the Senate Judiciary Committee.
“The only thing a minority party can do is vote no,” Jipping told The Daily Signal. “On average, Republican senators have voted 77% against Biden judicial nominees.”
Senate Republicans are opposing Biden judicial picks at a higher rate than Democrats opposed Trump-nominated judges, Jipping said. The average “no” vote for Biden judicial nominees includes 38.4 senators, compared to 21.9 senators voting “no” on Trump judicial nominees.
Senate confirmation fights over lower court nominees are relatively recent, beginning with Democrat filibusters of President George W. Bush’s nominees in the early 2000s.
Then-Senate Democratic Leader Harry Reid led a rules change to scrap judicial filibusters after the election of Obama. However, the Nevada Democrat’s move paved the way for Trump to push judges through a Republican-controlled Senate.
At this point, Biden mostly can hope for quantity over quality in terms of affecting the nation’s federal courts, said Michael Michael Thielen, executive director of the Republican National Lawyers Association.
“With Supreme Court appointments alone, Trump made a bigger difference on the judiciary. The Left put the screws to [Justice] Stephen Breyer to retire, and now they are trying to put the screws to Sonia Sotomayor to retire before the end of the year,” Thielen told The Daily Signal.
White House press secretary Karine Jean-Pierre took a question Wednesday about activist groups’ pushing for Sotomayor, 69, an Obama appointee, to retire.
“When it comes to those types of decisions, those are personal decisions,” Jean-Pierre told reporters. “That is—regardless if it’s Justice Sotomayor or any other justice on the bench, that is for them to make. That is a decision for that justice to make.”
“Again, it’s a personal decision,” Biden’s press secretary added. “That is not something that we get involved in. But it is something for, obviously, any justice on the bench—they are—they should be given the space and the freedom to make that decision.”
With the support of three independents, Senate Democrats have a working 51-49 majority over Republicans.
In an election year, Senate Democrats from battleground states aren’t likely to be eager to get into a messy confirmation fight, Thielen said.
“The only judge Biden is likely to get approved now is a consensus District Court nominee,” Thielen told The Daily Signal. “He’s not going to get these radicals confirmed to appeals court positions.”
Biden’s nomination of New York lawyer Adeel Mangi to be a judge on the 3rd U.S. Circuit Court of Appeals appears in peril after three Senate Democrats announced opposition to Mangi for what critics consider anti-police and anti-Jewish affiliations.
“Adeel Mangi’s role as a donor and board member of the Center for Security, Race, and Rights at Rutgers University—an organization that regularly promotes explicit antisemitic content and whitewashes terrorism—raises serious concerns regarding his ability to act as an impartial jurist,” Sen. Mike Lee, R-Utah, a member of the Senate Judiciary Committee, told The Daily Signal in a written statement. “We should move on to considering qualified judicial nominees who don’t have such troubling backgrounds.”
Voting against Biden’s judicial nominees isn’t enough, said Tom Jones, president of the American Accountability Foundation, a watchdog group. He pointed to Lee and two other Senate Republicans—Ted Cruz of Texas and John Kennedy of Louisiana—as vocal opponents of those nominees that others should emulate.
“I’m not shocked that Biden is close to catching up with Trump,” Jones told The Daily Signal. “It tells you that there hasn’t been a lot of vocal opposition from Senate Republicans. These [judges] are hugely consequential and will be on the bench for 25 years until they die.”
