Biden’s Silent Court Transformation Counters Trump’s Rightward Shift

President Joe Biden may be trailing former President Donald Trump in the opinion polls, but the Democratic incumbent now has pulled ahead in one metric that will long outlive both their presidencies.

Much ink was spilled during the Trump administration over his record-breaking pace of judicial appointments with the help of then-Senate Majority Leader Mitch McConnell (R-KY), but Biden has an edge on the judicial legacy.

Like Trump, Biden is hoping that his nominees will make rulings favorable to his party during their terms, and he has also made a point of appointing female and minority candidates into powerful positions.

The pair were tied at 193 appointments each at this point in their tenures for much of April, but Biden retook the lead earlier this week when the Senate confirmed Georgia Alexakis for a district judgeship in Illinois on Wednesday, giving him 194.

“I promised to have an administration that looks like America … a court that represents all the people,” Biden said on March 11 during a campaign speech in Atlanta. “Sixty-five percent of the judges I’ve appointed are women. Sixty-five percent are people of color. I’ve appointed more black women to the circuit courts than every other president in American history combined.”

While presidents have limited control over how many justices they nominate while in office — namely, vacancies must arise first — both parties recognize and emphasize the significance of getting their nominees confirmed as quickly as possible.

“Both parties now realize that judges can make life miserable, or not miserable, for different groups,” said Russell Wheeler, a senior fellow at the Brookings Institution. “So they understand the importance of these nominations.”

Historically, Republicans were more focused on the judiciary, Wheeler said, but Democrats have caught up and are now aggressively focusing on that branch of government as well. He pointed to a series of rulings from the Trump appointee-dominated U.S. Court of Appeals for the 5th Circuit as an example of the wide impact of judicial nominees.

While Biden now retains an overall lead on Trump and may finish with more confirmed nominees, a closer look may still give The Donald an edge.

Trump confirmed 51 appeals court judges, while Biden is at 41 and may not be able to match that number.

Biden holds the edge when it comes to district court judges, which are seen as somewhat less powerful. And of course, Trump got three justices confirmed to the Supreme Court, whereas Biden only has one, Ketanji Brown Jackson, who replaced Stephen Breyer, a fellow liberal justice.

Breyer resigned following a widespread pressure campaign from progressives who wanted a younger person to take his place, and Wheeler said similar pressure may flow from administration officials to older judges at lower levels calling on them to take senior status while opening up spots for a new, younger nominees.

The Senate must confirm nominees regardless, and there is an informal “blue slip” policy whereby home-state senators are given effective veto powers over judges who would serve jurisdictions within their state. That means Biden has had the most success in states with two Democratic senators.

Biden’s heavy emphasis on diversity also has implications when it comes to the election, as he often speaks about building a federal government that looks more like society at large.

“You can probably count on two hands the number of white males that Biden has appointed,” Wheeler said. However, he added that the practice of hyping appointments from underrepresented backgrounds is not necessarily new, saying that former President George W. Bush spoke about the high number of Hispanic justices he appointed.

Biden has also focused on nominees from various legal backgrounds, such as public defenders and labor lawyers, bucking a tradition of appointing prosecutors or lawyers from large firms.

Carl Tobias, a law professor at the University of Richmond, said the Biden White House is likely to continue emphasizing judicial nominees and will continue the process of nominating them up to and through the November election.

“I do think the White House is focused on those numbers, and they will do what they can,” he said.

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As his predecessor did, Biden will keep the pressure up because he understands the wide and long-standing impact those nominees will have in the coming years.

“The federal judges have extraordinary power to declare the rights that people have,” Tobias said. “Even though they’re not policymakers, they are very important.”