At the turn of the new year, there has been some comment about the fact that President Joe Biden is outpacing former President Donald Trump on judicial confirmations. At the end of his first year in office, Biden has confirmed 40 Article III judges total, including 11 appeals court judges and 29 district court judges. That compares favorably to the 19 confirmations Trump had managed by the end of 2017. And Biden nearly matched Trump’s record-setting confirmation of 12 appeals court judges in year one.
Biden is doing his best to reverse Trump’s judicial legacy, but there are a few considerations.
Biden currently has just 77 vacancies to fill (only four appeals court vacancies) and 33 announced future vacancies. In January 2018, Trump had 148 vacancies to fill, plus another 21 future vacancies. So yes, Biden is moving more quickly, but the list of his opportunities to replace judges is significantly shorter.
Even aside from his three Supreme Court appointments, Trump had an outsize effect on the judiciary, probably much greater than what Biden will have if he serves only one term. That’s because Republicans controlled the U.S. Senate throughout his single term as president, and they confirmed almost as many of his circuit court judges as George W. Bush and Barack Obama managed to get confirmed in two terms.
For this, he can thank the impatience of the far Left and the recently deceased, amoral, and power-hungry former Senate Democratic Leader Harry Reid.
By removing the filibuster for judicial nominations, as Senate Democratic Leader Chuck Schumer now wants to do for legislation, Reid unwittingly gave Trump almost as much influence over the future of the federal judiciary in one term as Bush and Obama were able to exercise in their respective two terms. And it was a one-time chance that Biden won’t get, absent some further unusual event.
In 2013, upset at the bottleneck affecting a relative handful of Barack Obama’s executive and judicial nominees, Reid invoked the so-called “nuclear option” to abolish filibusters against executive branch and judicial nominees. It was called the “nuclear option” because Reid effectively changed Senate rules without the required two-thirds vote in favor. (Republicans had considered doing this a decade earlier, but at that time, cooler heads prevailed.)
In the short run, this helped the Obama administration move several nominees, a few of them controversial. But after Republicans took over the U.S. Senate in the 2014 election, Senate Majority Leader Mitch McConnell refused to let Democrats gain a long-term advantage as a result of their power grab. He slowed judicial nominations to a crawl, with the implicit goal of limiting Obama to almost exactly the same number of judges (329 in the end) as George W. Bush had confirmed in his two terms (327).
But this decision also had a knock-on effect for Donald Trump’s presidency. It meant that by the time Trump took office, he had the opportunity to fill vacancies left by nearly 100 judges who had retired or announced their retirement, expecting either Barack Obama or Hillary Clinton to fill the vacancy. And Senate Democrats, by then in the minority, could now do nothing to block his nominees because of their own controversial change to the rules.
With the judicial filibuster now gone, this was a once-in-a-lifetime chance. It meant that Trump’s influence on the judicial branch, not only on the Supreme Court but also on the lower courts, was considerably greater than one would expect from a one-term president.
Although he was initially slow to move on nominations in 2017, Trump ended up confirming 234 judges total. That’s less than Obama’s 329 and Bush’s 327, but that’s a lot of judges for just four years. Also consider that 54 of Trump’s nominees were confirmed to the circuit courts of appeals, which compares favorably to Obama’s 55 and Bush’s 62. (Jimmy Carter did better than Trump in his one term, but he also had a once-in-a-lifetime chance — a 1978 bill that added 152 new judgeships to the federal judiciary.)
Trump may have been a one-term president, but he had a two-term president’s effect on the powerful appeals courts. Although Biden’s administration has gotten on the ball much more quickly with its confirmations, Biden is only burning more quickly through a shorter list. For all this, Trump has Harry Reid to thank.
