President Biden will have a chance to rework the federal judiciary as an increasing number of judges retire from the bench.
A spate of judges has moved to senior status since Biden took office, with the first, the Bill Clinton-appointed Victoria Roberts, announcing her move just hours after Biden's inauguration. Senior status is an arrangement that eases judges toward retirement, giving the president's team time to vet candidates for a replacement.
Biden entered the White House with 57 judicial vacancies, a far cry from the 117 openings that awaited President Donald Trump when he took office. But during Biden's first few weeks, judges moving toward retirement quickly raised those numbers. There are now 20 seats in which judges have moved to senior status, giving the new president a chance to hack away at what legal experts have called Trump's most enduring legacy.
Many of the judges leaving the bench were Democratic nominees who proved decisive in high-profile cases. Judge Emmet Sullivan, a Clinton nominee who moved to senior status on Thursday, became a national figure last year while presiding over the Justice Department's prosecution of Trump associate Michael Flynn. At one point in the trial, Sullivan told Flynn, "You sold your country out."
Judge Mary Briscoe, who moved to senior status on Friday, helped lead a 2012 panel that shut down Kansas Republicans in a redistricting case. Judge Carlos Lucero, who announced his move the week before, became nationally prominent in 2014 when he wrote the opinion striking down Utah's gay marriage ban a year ahead of the Supreme Court's landmark Obergefell v. Hodges decision. Like Sullivan and Roberts, both Briscoe and Lucero were appointed by Clinton.
Other retiring judges include California Judge William Alsup, who has been at the center of a series of Big Tech cases, and Robert Katzmann, a New York Appeals Court judge who presided over a series of investigations against Trump.
The majority of the retiring judges generally have liberal records, favoring a broad interpretation of the Constitution, as opposed to the bulk of the judges who Trump tapped throughout his term. Biden will likely swing back candidates with the former priorities as he makes appointments, said Laurence Tribe, a law professor emeritus at Harvard University.
"He will be looking for judges who can interpret and apply the law in a way that is sensitive to the lived experience of the people impacted by it," Tribe said.
In addition to the many vacancies on district and appellate courts, many judicial reform activists are also pushing for Supreme Court Justice Stephen Breyer to retire, giving Biden a chance to place someone younger on the high court. On the campaign trail, Biden said that he wanted to put the first black woman on the Supreme Court.
Court reform activists have also set their sights on Judge Merrick Garland's seat on the U.S. Court of Appeals for the District of Columbia Circuit. In the past month, that court, which has been nicknamed the "unofficial farm team for the Supreme Court," has drawn outsize attention as Garland prepares for his all-but-certain confirmation as attorney general.
But for Biden, it is with his lower court appointments that he will likely see the most immediate changes from the Trump-era judiciary, said Michael Moreland, a law professor at Villanova University. Few cases make it up to the Supreme Court, anyway, he said, and the fact that Trump did not completely remake the lower courts leaves open the possibility of another transformation.
"There's still some division on the circuit courts," he said. "That's where we're going to see if Trump's legacy is really reaffirmed."
