Joe Biden’s first set of judicial nominations this week is the beginning of something big: almost certainly by the end of this Congress, the majority of lower court seats will be filled by Democratic appointees.
That may surprise you, considering the breathless coverage Donald Trump received for his four-year judicial confirmation blitz. We were constantly told he was transforming the judiciary for a generation. With Sen. Mitch McConnell’s help, the Senate became a judicial confirmation factory. Not counting the Supreme Court, Trump got 231 judges with lifetime appointments confirmed. No president got more lower court judges confirmed in a single term since Jimmy Carter.
After flipping three Circuit Courts from majority-Democratic to majority-Republican, Trump left office with 7 of the 13 appellate-level courts staffed by a majority of Republican appointments. And when counting up all of the appellate-level and district-level judges at the end of Trump’s presidency, Republicans had more: 17 more to be exact.
That’s pretty good for a one-termer. But as you can see from the above numbers, the Republican grip on the lower courts is tenuous. Just one circuit court has to flip for Democrats to hold the majority of circuits again. Just nine seats have to flip for Democrats to hold the majority of seats again.
Securing those flips shouldn’t be too hard. Despite Trump’s torrid pace, he left some judicial seats empty, and more vacancies have been announced since Biden’s inauguration. At present, the federal judiciary has 97 current and future vacancies for seats with lifetime appointments. Fifty-two of those vacant seats were last held by Republicans,
Trump was able to move faster than most presidents because the filibuster for lower court judges was nuked by Democrats in 2013 (with Republicans finishing the job regarding Supreme Court nominee in 2017). Now it’s Biden who gets to take advantage of the easier rules, so he will at least partially offset Trump’s gains.
And Trump never claimed as much a share of the judiciary as his contemporaneous media headlines suggested. His 231 judicial confirmations amounted to 27% of the available seats. Trump’s three predecessors, each being two-term presidents, got more: Barack Obama had 327, George W. Bush 326, and Bill Clinton 376. A January count from Pew Research Center gave Obama the largest number of active lower judges, with 309 still serving, or 36% of the available seats. Having eight years instead of four as president makes a big difference.
Trump was buoyed during his lone term by having a Senate controlled by his party during his entire presidency. None of his predecessors had the same luck. And we don’t know how lucky Biden will get given the narrowest Democratic control of both chambers. If 2022 is a lousy midterm for Democrats, his judiciary pace will likely slow to a trickle. And considering how much a wide pendulum swing can impact the judiciary—especially with no filibuster in the way—Democrats should hope Biden can pad his numbers when he can, making it harder for the next Republican trifecta to tilt the judiciary back to the right.
Yes, Donald Trump got three justices on the Supreme Court, strengthening the conservative majority. That’s not nothing. But every year, thousands and thousands of disputes are decided in the lower courts. Meanwhile, the Supreme Court has been taking about six dozen cases per term, giving lower courts the last word most of the time. (The federal government’s judicial website says that “the [Supreme] Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year,” but a review by Ballotpedia found the Court has been averaging 76 cases per year since 2007.)
How much the titular-but-slow Supreme Court will outweigh the influence of the myriad-and-brisk lower courts will depend on how radical, or how incremental, the John Roberts majority chooses to operate. The faster and farther the Supreme Court moves, the less power is retained by the circuit and district court judges. But a politically cautious Supreme Court will let more lower court rulings stand. For example, as I’ve noted previously, the Supreme Court is showing reluctance towards taking up the Mississippi 15-week abortion ban, with time running out on the current term. Allowing the lower court ruling to stand keeps Roe v. Wadeand Planned Parenthood v. Casey in place.
Of course, no Democrat should be sanguine about what the Supreme Court might do. But we should never forget that full partisan and ideological control of the federal judiciary is elusive. By design.