The federal judiciary will soon be the last bastion of Republican power in the federal government.
President-elect Joe Biden takes office at noon on Wednesday. He’ll be joined by a Democratic House of Representatives and, at least after Sens.-elect Raphael Warnock (D-GA) and Jon Ossoff (D-GA) take their seats, a narrowly Democratic Senate. But Republicans absolutely dominate the highest levels of the federal judiciary, where they have a 6-3 majority on the Supreme Court.
It appears likely, moreover, that the GOP-controlled judiciary will be a thorn in Biden’s side. Trump-appointed Justice Neil Gorsuch, for example, is already laying the groundwork to strip federal agencies of much of their power to regulate after Biden takes office, and Gorsuch almost certainly has the five votes he needs to make this happen.
The Republican Party dominates the federal judiciary in no small part due to six years of work by outgoing Senate Majority Leader Mitch McConnell. When Justice Antonin Scalia died nearly a year before President Barack Obama left office, McConnell announced almost immediately that Obama’s Supreme Court nominee would get the cold shoulder from a Republican Senate. When Justice Ruth Bader Ginsburg died shortly before the 2020 election, McConnell ensured that her conservative replacement, Amy Coney Barrett, would be confirmed just days before the nation voted to cast Trump out of office.
During the final two years of Obama’s presidency — the only two years of his presidency that Republicans controlled the Senate — McConnell imposed a near-total blockade on new appointments to the federal courts of appeals (often referred to as “circuit” judges). The result was that now-outgoing President Donald Trump got to fill nearly all of the judicial vacancies that came open during his presidency, plus nearly all of the appellate court seats Obama should have filled in his final two years.
Despite the fact that Obama served for twice as long as Trump, there are currently 53 active circuit judges appointed by Trump and only 50 appointed by Obama. (Obama’s judicial confirmations also got off to a fairly slow start, although they picked up considerably once the Senate changed its rules in 2013 to make it easier to confirm judges.)
One consequence of the narrow incoming Democratic majority in the Senate is that McConnell won’t be able to impose a new blockade on Biden’s judicial nominees. And Biden, a former chair of the Senate Judiciary Committee, is signaling that he hopes to move quickly to confirm new judges.
Biden, who has more pre-presidential experience with judicial confirmations than any recent president, appears to already have a robust sense of who he wants to put on the bench: In late December, incoming White House counsel Dana Remus sent a letter to Democratic senators asking them to help identify diverse candidates for federal judgeships, including public defenders, civil rights lawyers, and attorneys for the poor.
But even with a Democratic Senate, Biden faces a long, difficult fight if he hopes to erase Republican dominance of the judiciary.
What Trump did to the courts
Measured simply by the number of people he placed on the Supreme Court, Trump did more to shape the Court than any president since Ronald Reagan — and more than any one-term president since Herbert Hoover. One-third of Supreme Court seats are held by Trump appointees, even though Trump lost the popular vote in 2016 and Republicans held a Senate majority during Trump’s term only due to malapportionment.
Trump owes this influence, moreover, to McConnell’s willingness to play Calvinball with the rules and norms governing Supreme Court appointments. When Scalia’s death resulted in a vacancy nearly eight months before the 2016 election, McConnell announced a new rule — when a vacancy arises so close to a presidential election, the vacancy must be filled by the “next president.”
Yet when Ginsburg died just weeks before the 2020 election, McConnell’s Republican-led Senate raced to confirm her replacement before voters had a chance to officially repudiate Trump. Trump’s last appointment to the Supreme Court, Amy Coney Barrett, took her seat eight days before the election.
As the Supreme Court sits at the apex of the judiciary, it plays an outsized role in shaping American law. But that’s no reason to discount the impact of other courts. In a typical year, the Court may hear between 60 and 80 cases that receive full briefs, oral arguments, and a written opinion. Federal trial courts, meanwhile, heard nearly 400,000 cases in 2019, and circuit courts heard close to 50,000 appeals.
With circuit nominees, Senate Republicans played games similar to those that helped them maximize GOP control of the Supreme Court. In the final two years of his presidency, Obama successfully appointed only two federal appellate judges — and one, Kara Farnandez Stoll, was confirmed to a specialized court that deals mostly with patent cases.
By contrast, a Democratic Senate confirmed 10 federal appeals court judges during the final years of Republican George W. Bush’s presidency. And, according to the Federal Judicial Center, the Senate confirmed 24 appellate judges during Trump’s final two years in office.
One consequence of McConnell’s determination to confirm Republican judges and block Democrats is that Biden takes office with very few judicial vacancies to fill, at least on the court of appeals level. Just two appellate court seats are currently vacant — one on the First Circuit and one on the Seventh Circuit. (A total of 43 seats on less powerful federal district courts are vacant.)
Another consequence is that Trump’s judges have an outsized amount of influence on the federal judiciary. Over the course of his presidency, Trump appointed 54 individuals to the federal appellate bench. Obama, meanwhile, appointed a total of 55 appellate judges — even though Obama was president for four years longer than Trump.
The following chart represents all current United States courts of appeals judges who remain on active status — older judges may take “senior” status, a form of semi-retirement where they typically hear a reduced caseload. Ninety-seven active federal appellate judges were appointed by Republican presidents, while only 81 were appointed by Democrats.
Although senior judges retain a great deal of authority, circuit judges who take senior status are stripped of one very important power — they typically do not sit on “en banc” panels, a special process that appeals courts can use to overrule their own precedents. Thus, whoever controls a majority of the active seats on a federal appeals court has tremendous power to shape federal law within the states overseen by that court.
There are 13 federal appellate courts, and Republican appointees make up a majority of active judges on the Second, Third, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits. That means that an enormous landmass that includes New York, Pennsylvania, and most of the South and Midwest, is overseen by appeals courts with a Republican majority.
Moreover, on several of these courts, including the Fifth, Sixth, and Eighth Circuits, Republican appointees have such lopsided majorities that it is unlikely that Biden could eliminate those majorities even if he serves for two terms and shares power that entire time with a Democratic Senate.
The incoming president, in other words, has a great deal of work ahead of him if he hopes to reverse Trump and McConnell’s influence over the federal bench.
So what can Biden do?
To date, the Biden transition team’s most detailed statement about how it plans to approach judicial nominations is incoming White House Counsel Dana Remus’s late December letter to Democratic senators. While that letter primarily deals with district court nominees — the lowest rank of federal judge who receives a lifetime appointment — it does offer some hints that Biden hopes to move as rapidly as he can on judges.
Home-state senators historically have played an outsized role in selecting district and circuit judges in their home states (although federal appellate circuits typically stretch over multiple states, each seat on circuit court is traditionally assigned to a particular state, and senators can be quite protective of these traditional assignments). For many years, lower court judgeships were often treated as patronage appointments — with senators doling out these jobs to their friends and allies. And, even now that much of the old patronage system has been dismantled, presidents often rely on home-state senators to identify strong candidates to fill judicial vacancies.
After all, the president is unlikely to know who the best lawyers in Oregon are without some help from people from Oregon.
But home-state senators can just as often frustrate a president’s attempt to swiftly fill judicial vacancies, even that senator belongs to the same party as the president. If a senator is slow to recommend potential nominees to the president, the vacancy may sit open for months, and the president may be reluctant to antagonize a senators by nominating a new judge without the senator’s input.
Remus’s letter, however, suggests that Biden plans to avoid such delays. The letter instructs Democratic senators who “choose to use judicial nominating commissions” to evaluate potential district judges “to set up these commissions immediately.” And the letter warns senators that they should “forward names to us within 45 days of any new vacancy being announced.”
The clear implication is that, if senators do not recommend nominees quickly, Biden could name someone without their input.
Biden also appears to have been influenced by an emerging debate within the legal profession about the morality of certain kinds of lawyering.
Historically, work at a corporate law firm or in a prosecutor’s office was viewed as a political neutral credential — in part because influential lawyers in both parties tended to seek out such jobs. While President Obama placed a great deal of emphasis on racial and gender diversity when he selected federal judges, he also elevated many judges who worked as prosecutors or as law firm partners. Obama’s final Supreme Court nominee, Judge Merrick Garland, is both a former prosecutor and a former law firm partner.
Meanwhile, Obama largely neglected lawyers who worked for advocacy organizations focused on the public interest. A 2014 report by the liberal Alliance for Justice found that only 3.6 percent of Obama’s lower court nominees worked for public interest organizations. And, while 43 percent of his district court nominees and 38 percent of his circuit court nominees had worked as prosecutors, only 15 percent of his district nominees and 7 percent of his circuit nominees had been public defenders.
Yet while these sorts of career choices might have been viewed as politically neutral under Obama, an increasingly vocal segment of the legal profession — and of legal advocacy groups — no longer holds such a view. Neal Katyal, a former acting Solicitor General of the United States under Obama who is now a partner at a large law firm, was widely criticized for representing two corporations accused of aiding and abetting child slavery. Demand Justice, a young, well-funded advocacy group seeking to move the judiciary to the left, called for a ban on Democratic judicial nominees who have achieved “partner status at a corporate-law firm — such as the large firms known collectively as Big Law — or who serves as in-house counsel at a large corporation.”
As Demand Justice’s Brian Fallon and Christopher Kang wrote in The Atlantic, “the federal bench is wildly unrepresentative of the legal profession as a whole.” It overrepresents lawyers who pursued lucrative firm jobs, and it underrepresents lawyers who devoted their careers to the least fortunate.
Though it’s far from clear that Biden will go as far as to deny judicial appointments altogether to lawyers with certain backgrounds, the Remus letter asks senators to identify potential nominees “who are public defenders, civil rights and legal aid attorneys” — a clear sign that Biden’s been influenced by groups like Demand Justice.
The fate of many of Biden’s nominees, meanwhile, will be determined by how incoming Senate Judiciary Committee chair Dick Durbin (D-IL) approaches an antiquated tradition known as the “blue slip.”
Briefly, when the president names a judicial nominee, the senators from that nominee’s home-state are send a blue sheet of paper asking them whether they approve of that nominee. Yet, while the tradition of asking home-state senators whether they approve of a nominee stretches back many years, the significance of a senator’s decision to disapprove of a nominee has varied wildly depending on who chairs the Judiciary Committee and whether that chair wants the sitting president’s nominees to be confirmed.
Unfortunately for President Obama, and for Obama’s nominees, Sen. Patrick Leahy (D-VT) took an unusually rigid stance on the blue slip during Obama’s first six years in office, when Leahy chaired the Judiciary Committee. Under Leahy, a single senator of either party could veto any nominee from their home state that they disapproved of.
Republicans took ruthless advantage of Leahy’s approach — Sen. Ron Johnson (R-WI), for example, effectively held a appeals court vacancy open for eight years until Trump could fill it. Then, after Trump became president, then-Senate Judiciary Chair Chuck Grassley (R-IA) stripped Democratic senators of their ability to block circuit court nominees from their home state.
For the moment, moreover, it’s far from clear how Durbin plans to approach the blue slip. I emailed Durbin’s office multiple times asking about how he will use blue slips once he takes over the Judiciary Committee, and did not receive a response. Sources at multiple liberal advocacy groups that work on judicial nominations also told me that they do not yet know how Durbin will use blue slips.
If Durbin repeats Leahy’s error, he could give Republicans a great deal of power to sabotage Biden’s nominees.
McConnell will not be able to blockade Supreme Court nominees
The most high-profile judicial nomination that Biden is likely to make during his presidency is a replacement for Justice Stephen Breyer. Though Breyer’s been coy about whether he plans to retire soon, he’s also 82 years old. And a Biden presidency combined with a Democratic Senate gives the elderly Clinton appointee an opportunity to retire and be replaced by a like-minded judge.
Biden, who promised to nominate a Black woman to the Supreme Court if given the opportunity to do so, already appears to be laying the groundwork to replace Breyer. By nominating Merrick Garland to be his attorney general, Biden is likely to open up Garland’s seat on the United States Court of Appeals for the District of Columbia Circuit. Biden is also reportedly considering Judge Ketanji Brown Jackson, a Black federal trial judge who clerked for Breyer, to fill Garland’s seat.
Three of the Supreme Court’s current members are former DC Circuit judges, so, by placing Judge Jackson on that powerful court, Biden would make her into a strong candidate to replace Breyer (though it’s worth noting that there are other strong candidates as well, such as California Supreme Court Justice Leondra Kruger).
In any event, a Democratic Senate majority, even a very narrow one, means that Biden has a real shot at filling any vacancies that arise on the Supreme Court — provided that the justices do not all hold onto their seats until after that majority could be lost.