President Donald Trump and Sen. Mitch McConnell turned the judicial confirmation process into a well-oiled machine. President Joe Biden is adopting their approach and then some.
Trump, as president from 2017 to 2021, and McConnell, a Kentucky Republican who was Senate majority leader at the time, made the confirmation of federal judges a top priority. Biden is, depending on the metric, moving just as fast or even more swiftly than his predecessor.
To be sure, Biden to date hasn’t had the chance to appoint Supreme Court justices, where confirmation hearings are national spectacles. Trump got three Supreme Court appointments, including one waiting for him when he entered office in January 2017, which resulted in Neil Gorsuch joining the bench (followed by Justices Brett Kavanaugh and Amy Coney Barrett). By the end of Trump’s term, the Supreme Court had a roughly 6-3 conservative majority.
But the Biden confirmation numbers for federal district and appeals court justices are stark. Twenty-eight Biden nominees have been confirmed by the Senate as of Nov. 3, whereas Trump only had 10 confirmations to lower courts by the same period in 2017.
While Trump’s judicial legacy is largely heralded for his three appointments to the Supreme Court and creating the present 6-3 conservative majority on the bench, the Biden White House has worked swiftly to counter his influence in lower courts and touted the president’s “unparalleled speed with respect to judicial nominations.”
The Senate has confirmed nine appellate court judges during Biden’s first year, compared to six judges during Trump’s first year in office.
McConnell, now Senate minority leader, once crowed over his efficiency in moving through Trump judicial nominations.
“We think we’re on pace here to begin to make substantial changes in the federal judiciary,” McConnell said in November 2017.
But Biden has his own interest in the issue. A Delaware senator for 36 years before serving as vice president from 2009 to 2017, Biden was a longtime chairman of the Senate Judiciary Committee, which processes judicial nominations. Having led the Judiciary Committee from 1987 to 1995, and as a longtime member before that, Biden is intimately acquainted with the power federal judges below the Supreme Court level can have in upholding or striking down key elements of a president’s agenda.
Biden is notably setting record confirmations in district court judges, who make initial rulings in criminal prosecutions and civil litigation and oversee trials. The Senate has confirmed 19 Biden federal district court nominees, compared to four for Trump during a similar time frame. Of the six most recent presidents, Ronald Reagan earned the second-highest number of district court nominations at 16 within his first year, according to data from the Federal Judicial Center.
Earlier this month, Biden’s administration announced its ninth round of judicial nominees, bringing the total number of named federal judicial nominees to 62.
Biden notably crossed the threshold last month for appointing and the Senate confirming the most federal judges through Oct. 1 of a president’s first year since 1981. The Senate had confirmed 14 federal judges through the first day of last month, while Trump confirmed seven by that point in his term.
BIDEN MOVES QUICKLY ON CONFIRMING JUDGES, LAGS BEHIND WITH OTHER VACANCIES
The Biden administration’s strategy for successfully confirming federal judges at a record pace largely mirrors the Trump administration’s patterns of targeting vacancies in politically aligned states, as all of the Democratic president’s nominees have been in states with no Republican senators or in Washington, D.C., which doesn’t have congressional representation.
The president has also benefited from a significant number of vacancies, as there are 77 empty spots out of 890 active federal judicial roles. Four of Biden’s judicial nominees are awaiting a confirmation vote in the Senate, and 12 are awaiting an appropriate committee vote in the Senate.
Biden is likely making moves to expedite judicial confirmations due to his party’s slim 50-50 majority in the Senate, with the vice presidential tiebreaker, and with 2022 midterm elections less than a year away. During former President Bill Clinton‘s administration, Republicans gained a majority in the Senate in 1995 and blocked over 60 of his judicial nominees, providing more vacancies for President George W. Bush to fill.
The president’s fast-paced nomination agenda, coupled with the professionally diverse array of judges, is likely an effort to offset Trump’s near-record number of confirmations. The 45th president averaged 61 judicial appointments per year during his single term in office, a higher average than every president since President Jimmy Carter, who also was in office one term but averaged 65 judicial appointments per year.
Despite the Trump administration’s speedy confirmation rate in the short range of four years, he appointed fewer judges than three presidents who came before him due to his limited time in office. Nevertheless, as of Jan. 13, more than a quarter of active federal judges were Trump appointees confirmed with the help of McConnell.
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Former President Barack Obama, who served two terms, maintained the largest share (38%) of active federal judges by that date, according to Pew Research Center.
