Let’s Look At How Democrats Handled Biden’s Judicial Nominees

The House just passed the JUDGES Act, which would create the first new positions on the U.S. District Court since 2003. Majority Leader Chuck Schumer, D-N.Y., allowed the Senate to pass it on Aug. 1, when he thought Kamala Harris would win the White House. Now that Donald Trump has won, and the House has passed the bill, President Joe Biden says he will veto it to prevent Trump from having more vacancies to fill.

Democrats controlled the Senate side of the process during Biden’s term and ran a highly partisan operation — with tactics they once criticized Republicans for using — to steer the judiciary sharply to the left.

Biden will appoint a total of 235 judges to the four courts with life-tenured judges: 187 to the U.S. District Court, 45 to the U.S. Court of Appeals, two to the U.S. Court of International Trade, and one to the U.S. Supreme Court. He will exceed President Donald Trump’s first-term total by one and take the second spot on the list of most single-term appointments in American history. Only President Jimmy Carter, after Congress created 152 new judicial positions in 1978, appointed more.

Biden’s total is even more impressive because the confirmation process is more cumbersome than ever. Democrats radically changed longstanding confirmation process norms when Trump took office, shifting the Senate from a check on the president’s appointment power, as America’s founders designed it, to a competitor fighting the president by routinely opposing his nominees. From President Teddy Roosevelt to President Barack Obama, only 4 percent of judges confirmed by the Senate had any opposition; Democrats increased that twenty-fold for Trump nominees, and the figure is 97 percent for Biden nominees.

During the same Roosevelt-Obama period, senators of one party opposed an average of 2 percent of judicial nominees by a president of the other party. Here, too, Democrats boosted the partisanship twenty-fold to 41 percent, and Republicans have voted against an average of 78 percent of Biden judicial nominees.

While most attention is focused on nominations and confirmations, the Senate Judiciary Committee is the link between the two, and it’s important to also assess how the Judiciary Committee, chaired by Sen. Dick Durbin, D-Ill., has handled its part of the process.

As it turns out, Democrats specifically outlined how the Judiciary Committee should handle a president’s judicial nominees before Biden took office. Ten Democrats signed a report in May 2018 accusing Republicans of undermining the Senate’s role of advice and consent and abusing the confirmation process in order to confirm Trump’s judicial nominees. Seven of those Democrats serve on the committee today and another, Kamala Harris, is the outgoing vice president. Let’s see if their walk matched their talk.

Comparing Republicans and Democrats’ Records

The report said that including more than one nominee to the U.S. Court of Appeals in any confirmation hearing makes it “more difficult to vet and question them.” Republicans did that in 13 hearings on Trump nominees; Democrats have done it in 15 hearings on Biden nominees.

Democrats also complained about the “breakneck speed” with which the Senate confirmed Trump’s appeals court nominees. While the report provided no benchmark for how long the confirmation process should take, the average of 131 days for Trump’s first 15 appeals court nominees was apparently much too fast. Democrats, however, not only confirmed Biden’s first 15 appeals court nominees at an even faster clip, but continued to do so throughout his term.

Democrats argued that Trump’s appeals court nominees were controversial, offering as evidence that they were often confirmed “largely along party lines.” Biden’s appeals court nominees were confirmed with an average of 12 percent more negative votes than Trump’s and, as pointed out above, Democrats made that party-line division on confirmation wider and deeper than ever.

In their report, Democrats also observed that many of Trump’s appeals court nominees were confirmed with fewer than 60 votes, the threshold for filibusters that Democrats had eliminated for nominations in 2013. While 68.5 percent of Trump’s appeals court appointees during his first term were confirmed with fewer than 60 votes, that measure of opposition jumped to 82 percent during Biden’s term.

Durbin has been much more partisan over the last four years than Sens. Charles Grassley, R-Iowa, or Lindsey Graham, R-S.C., when they chaired the committee under Trump. Eighty percent of the Biden nominees receiving a hearing were from blue states, while 50 percent of the Trump nominees receiving a hearing were from red states.

Results

You get the picture. While Democrats created a new process in 2017 in order to routinely challenge Trump’s nominees, a determined Republican leadership in the Judiciary Committee and full Senate kept the confirmation process trains running. Democrats have done the same for the past four years. Today, according to the Federal Judicial Center, appeals court judges in active service are evenly split between Republican and Democrat appointees, while 60 percent of active district court judges were named by Democrats.

The JUDGES Act would have created 66 new district court judgeships over the next decade, with 14 ready for appointments in 2025 and another 11 in 2027. It looks like, without those additional positions, Trump will have about 35 vacancies to fill when he again takes office next month, one-third as many as he had in January 2017. If the average pace of judges leaving their appointed positions continues, however, Trump may, between his two terms, have the largest impact on the federal judiciary than almost any president in history.

Thomas L. Jipping, a senior legal fellow at The Heritage Foundation, is the deputy director of Heritage’s Edwin Meese III Center for Legal and Judicial Studies.