How Biden Is Shaping the Federal Judiciary

President Joe Biden has outpaced his six most recent presidential predecessors in Senate judicial confirmations, and in the process, he’s made good on his mission to diversify the federal judiciary, nominating a slate of nonwhite judges that stretches far beyond Justice Ketanji Brown Jackson on the Supreme Court.

Biden has by far done more to reshape the appearance of the courts than any U.S. president in history. He’s decried that the courts “haven’t looked like America” and said, “It’s time that we have a Court that reflects the full talents and greatness of our nation,” in February upon the nomination of Jackson, who became the first black woman sworn on to the Supreme Court in June and also has a background in public defense.

BIDEN IS WINNING ON ONE FRONT: JUDICIAL NOMINEES

To date, the president has nominated a total of 121 individuals to federal judgeships since he took office in January 2021 and has seen 76 of his nominees confirmed as of Aug. 2. His confirmation total is more than former Presidents Donald Trump, Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush, and Ronald Reagan at the same point in their presidencies.

Among Biden’s federal judge confirmations, 28% are black, 22% are Hispanic, and 18% are Asian, according to a July report by the American Bar Association. Despite his appointment gains, data show there are still racial disparities in the judiciary, with 78% of federal judges who are white, while only 11% of judges are black, 8% are Hispanic, and around 4% are Asian. The latest U.S. Census Bureau data show the population of the nation is 14% Black, 19% Hispanic, and 6% Asian.

Still, 77% of Biden’s confirmed judicial appointments have been women, making 30% of the federal judiciary now female, up 3% from 2020. Biden’s female appointee record is also greater than Obama‘s record of women appointees, which represented 42% of his total confirmations. By comparison, 24% of Trump‘s confirmed judicial appointments were women.

Biden stood at 17 appeals court confirmations through Aug. 1 of the president’s second year in office, surpassing the records of six presidents who came before him within the same time frame — except for Trump, who had 24 appeals court confirmations by this time during his second year.

But the president beat Trump by 56 to 26 confirmed judges at the district court level in that time.

Additionally, Biden’s total appointment of 76 judges as of Aug. 5 beats Trump’s 46 confirmations by the same date of the former president’s second year, according to the conservative Heritage Foundation’s Judicial Appointment Tracker.

Despite Biden’s early success on the judiciary, many progressive advocates, including the group Demand Justice, have called on the Democratic-controlled Senate to move quickly to fill at least 120 total vacancies as they raise concerns the GOP could retake the chamber after the midterm elections in November.

Russell Wheeler, a governance studies expert with the Brookings Institution, said it is an “open question” as to whether the Senate will reach a total of 100 federal court nominations by January.

“I think it’s gonna be tough for them to get to 120, or they might just plow through a lot of them after the midterms regardless of what the outcome is, as far as the Senate goes,” Wheeler said.

Senate Judiciary Committee Chairman Dick Durbin (D-IL) and Sen. Chuck Grassley (R-IA), the ranking Republican on the committee, were reportedly in talks late last month to schedule more judicial confirmation hearings during the August recess. However, Durbin implied that scheduling additional hearings may happen only after Congress reconvenes in early September, according to an interview with Bloomberg Law.

A spokesperson for Grassley told the Washington Examiner Friday that “committee precedent” doesn’t support additional hearings in August, though the ranking Republican member previously acknowledged Republicans held hearings during recess under Trump.

“During Sen. Grassley’s discussions with Sen. Durbin on the subject of additional hearings, Sen. Grassley has reiterated that committee precedent does not support adding hearings during the August recess. And Sen. Grassley supports following that precedent,” the spokesperson said.

While there is a big question mark as to whether the GOP will retake the Senate after November, Wheeler said Democrats will continue to advance nominees expeditiously regardless of the outcome. For instance, 14 of Trump’s judicial nominees were confirmed after Republicans lost the White House and Senate between November 2020 and Biden’s inauguration on January 20, 2021.

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Biden’s commitment to diversity has set numerous records in the federal judiciary. The latest bipartisan Senate confirmation of Roopali Desai saw her become the first South Asian American judge on the 9th U.S. Circuit Court of Appeals, marking Biden’s fifth confirmed appointee to this appeals court.

“I think we’ll continue in this mode,” Wheeler said of Biden’s diverse judiciary trend. Still, he noted the high number of confirmations Biden has gained so far could taper off if Democrats lose their narrow Senate majority.