WASHINGTON — As President Joe Biden’s term progresses, his administration’s impact on the U.S. judiciary becomes increasingly significant, likely surpassing his predecessor Donald Trump in the number of judicial appointments. While Biden may well set records for district court appointments, he faces challenges altering the ideological balance of the federal appellate courts to the extent achieved by Trump.
Trump’s tenure was marked by a strategic overhaul of the federal judiciary, notably the appellate courts, shifting their ideological balance rightward significantly. This transformation involved flipping three key circuits and reshaping the most influential appellate benches in the country.
Despite fewer opportunities to appoint judges to the appellate courts due to fewer vacancies — a stark contrast to the numerous vacancies Trump inherited that included a significant Supreme Court seat — Biden has managed one notable “flip” back. The 2nd Circuit has returned to a narrow majority of judges appointed by Democrats, although the overall conservative tilt remains across the broader appellate landscape.
The strategic importance of the appellate courts cannot be overstated, as these courts frequently are the last to speak on cases that affect national policy. Biden’s nominations to the district courts are set to exceed Trump’s, making lasting but less visible impacts. Still, decisions from district courts generally affect only the parties involved and do not establish binding precedents as appellate rulings do.
Carrie Severino, president of the judicial advocacy group JCN, noted the significant influence Trump’s appointments had on the appellate level, which is considered by many as making law, whereas district courts generally do not establish legal precedents.
The focus on the circuit courts by both administrations underscores a broader understanding of their pivotal role in shaping legal precedent. This is evident from the actions taken under both leaders to secure senate confirmations regardless of opposition from home state senators, leveraging changes to senate rules concerning judicial appointments. The “blue slip” practice, traditionally used to demonstrate senatorial approval of judicial nominees, was set aside at times to expedite appointments to these influential benches.
Changes spearheaded during Trump’s administration by then-Senate Majority Leader Mitch McConnell, including the elimination of the filibuster for Supreme Court nominations and a more strategic use of the blue slip process, particularly for appellate nominations, helped cement a conservative bent in the federal judiciary. This was further demonstrated by the successful blockade of former President Barack Obama’s Supreme Court nominee, Merrick Garland, which allowed Trump to appoint Justice Neil Gorsuch, further shifting the court towards conservatism.
Furthermore, the retirements and deaths of key justices during Trump’s tenure enabled him not only to fortify the conservative lean in the Supreme Court but also to expand it. This was particularly impactful given the high court’s role in ultimately defining federal law in the United States.
The judicial appointments under Biden also reflect a focus on enhancing diversity along racial, gender, and professional lines, promoting significant strides in bringing more women of color and public defenders into judicial roles. These appointments symbolize not just a quantitative but a qualitative shift in the judiciary under his administration.
In conclusion, as the next electoral cycles approach, the importance of the Senate’s control becomes vividly clear. The Senate’s sway in confirming judicial appointments can dramatically influence the judiciary’s trajectory, affecting everything from social policy to regulatory frameworks. Hence, each appointment, particularly to the appellate benches, will be crucial for defining the balance of power and the interpretation of laws that affect every American.