Donald Trump’s most consequential accomplishment as president, the transformation of the Supreme Court, was made possible by dumb luck and the work of others. Thanks to the machinations of Mitch McConnell, the retirement of Anthony Kennedy, and the death of Ruth Bader Ginsburg, the 45th president was handed the opportunity to appoint three Supreme Court justices and create a conservative supermajority that is changing the very basis of American law and government.
Joe Biden, by contrast, has had the chance to appoint only a single member of the Court, replacing one liberal justice, Stephen Breyer, with another, Ketanji Brown Jackson. The first Black woman justice has proved to be an influential addition to the Court, with her expertise in criminal justice and her brilliance in deploying textualism to undercut the conservatives. But due to circumstances outside either president’s control, Trump has had far more influence on the high court.
Many people may not realize that the same pattern applies to lower federal courts, where a president’s appointments can be as, or even more, consequential in the long run. Trump was able to place a record-breaking number of district and appellate judges, mostly because Republicans under McConnell blocked so many of Barack Obama’s nominees. (And because Obama himself didn’t get around to nominating judges to many open seats.) Biden had fewer opportunities teed up for him, but has done more with what he was given, nearly matching Trump’s record.
In a second term, either president will continue to aggressively remake the judiciary. Trump will likely name judges who are even more ideologically inclined—and loyal to him. Biden will have a chance to rebalance the circuit courts and appoint more judges with backgrounds in economic justice and labor needed to advance his agenda—if he learns from the procedural mistakes of his first term.
Let’s start with the numbers. Overall, Trump was able to fill 234 judgeships on the federal bench; Biden, less than a year from the end of his term, will need close to 60 to match that number. Of Trump’s judges, 174 were trial judges in district courts, 54 were judges in appeals courts, and three, as the world knows, were new Supreme Court justices—for a total of 226.
One reason for Trump’s success was the number of vacancies at the end of Obama’s presidency. Under McConnell’s leadership, Republicans, then in control of the Senate, blocked most Obama nominees in his final two years, including the “stolen” seat denied to then Judge Merrick Garland on the grounds that voters deserved a say in the pick, and thus it would have to wait until after the 2016 election. From this obstruction, Trump inherited more than 100 vacancies when he took office, with 17 in the critical federal appellate courts. By 2020, Trump had filled more than one-quarter of all the appellate judgeships nationwide with his conservative picks. Another reason Trump got three Supreme Court justices is because McConnell didn’t hesitate to break his own rule in 2020, allowing Trump an appointment within weeks of the 2020 election when Amy Coney Barrett was confirmed just weeks before Trump’s defeat.
Trump could move quickly because, with the support of Senate Republicans, he handed over selection of judges to the ultraconservative Federalist Society, which had a list of pre-vetted nominees prepared before Election Day. This is an advantage the GOP has over Democrats, who have wasted much time in the past three years squabbling over identities and procedures. (Speaking to the conservative outlet Breitbart in 2016, Trump promised, “We’re going to have great judges, conservative, all picked by the Federalist Society.”) This collaboration rendered the confirmation process speedy. Thus, the numbers don’t come close to explaining the really significant impact Trump has had on the law, since his judges (and justices) tend to be hard-right ideologues.
According to a study done by The New York Times in 2020, more than a third of Trump judges filled seats previously occupied by Democratic appointees. As a result, in some reliably left-leaning circuits, including those serving New York, Connecticut, and San Francisco, the partisan gap in appointments has been equalized or even tipped rightward. Trump also moved two other circuits, the Third and the Eleventh, into the conservative column.
Trump’s judges are much younger than those nominated by other presidents-a full five years younger than those nominated by Obama, making for 270 more years of service on average.
And these judges have so far remained loyal to right-wing ideology—not surprising because most of them, unlike typical judicial nominees, had been engaged in the right-wing culture war. They are more consistent in voting only for conservative outcomes, openly disagreeing more frequently with Democratic appointees than the norm.
The Fifth Circuit Court of Appeals is particularly notable for Trump appointees willing to bend precedent and doctrine in favor of right-wing outcomes. For instance, the Fifth has ruled against limits on gun ownership for those under domestic violence restraining orders, and against a Biden administration policy encouraging social media companies to take down election and public health misinformation. By contrast, it ruled in favor of restricting the distribution of mifepristone in medical abortion.
Litigators are seeking to take advantage of Trump’s nominees’ proclivities by bringing a geographically broad-based attack on federal regulations, with cases in the Fifth, Eighth, First, Second, and D.C. Circuits undermining the ability of government to protect health and safety and control financial fraud. Knowing that at least one of these cases would make its way to the Supreme Court, they can be assured of having the anti-regulatory justices further dismantle the administrative state.
Making his impact all the stronger, Trump’s judges are also much younger than those nominated by other presidents—on average, a full five years younger than those nominated by Obama. The law professors David Fontana and Micah Schwartzman calculated in a piece in The Washington Post that the difference in age would mean 270 more years of service for Trump judges than Obama judges. That’s a lot of decisions to be rendered and a lot of lives affected.
Now for Biden’s record: He’s head and shoulders above most of his Democratic predecessors. After taking office, Biden’s team, headed by former Chief of Staff Ron Klain, moved quickly. As of February 2024, the Senate has confirmed 177 of Biden’s nominees to Article III judgeships (the judges who have life tenure under the Constitution). Biden has appointed 40 judges on the circuit courts of appeal and 134 on the district courts; he has 19 nominees pending. Even so, he has had many fewer opportunities to make nominations simply because Trump, benefiting from McConnell’s obstruction, had more vacancies to begin with.
Nonetheless, this record is exceptional compared to Obama’s or Bill Clinton’s; neither of them put as much energy or focus into filling judicial slots, with the consequent losses for progressive forces in the courts. Moreover, Biden has successfully moved a diverse group of nominees: approximately two-thirds are women and two-thirds people of color. And more than half of them come from legal backgrounds outside the usual route to the bench (prosecution and corporate law), instead encompassing public interest law, civil rights, and legal aid.
But he has come up short in advancing judicial nominees who have a background in economics and labor. Such judges could help dethrone the hard-right deregulatory ideology Republican judges have carried forward, and challenge the “consumer pricing” standard of antitrust enforcement that has allowed big corporations like Amazon and Facebook to monopolize their corners of the economy over the past 40 years. He has named progressives to government posts—like Lina Khan to head the Federal Trade Commission and Jonathan Kanter at the Antitrust Division of the Department of Justice—but his judicial appointments haven’t been in the same mold.
Currently, there are 57 vacancies on the federal courts. In theory, Biden could fill them all, but that’s probably not possible for a variety of reasons. First, only 19 of these have pending nominations. Second, the close partisan division in the Senate means that Biden’s nominees must suit every Democratic senator, including mavericks like Joe Manchin and Kyrsten Sinema. Then there is the problem of the so-called blue slip. Many judgeships are filled by agreement with individual senators from the state where the court is based—and here Democratic senators have been slow to agree, and Republican senators recalcitrant. For example, it took Senator Ben Cardin more than a year to agree to the nomination of Nicole Berner, former general counsel to the Service Employees International Union, to the Fourth Circuit. Cardin implied that he opposed Berner because she does not live in Baltimore.
To fill the current vacancies, Biden will likely have the most success in states like Arizona, New York, Pennsylvania, and California, whose senators are Democrats or caucus with Democrats, and thus presumably will furnish a blue slip to advance the nominees. Blue slip practices are determined by the current chair of the Judiciary Committee, at the moment Senator Dick Durbin of Illinois. But with the example of Berner and Cardin so fresh, even in states that should cooperate with the White House we may see Democratic obstruction for parochial and nonstrategic reasons.
So far, Biden has held off nominating people who can’t get blue slips from either Republicans or Democrats, but many are calling for him to do so. Durbin is unfortunately following in the footsteps of his Democratic predecessor at the committee, retired Senator Pat Leahy, who allowed Republican senators to block Obama’s appointments. Republicans, who controlled the Senate for six years between Leahy and Durbin, made the rule significantly less stringent, which allowed Trump to advance his highly ideological nominees out of committee over the objections of home-state Democrats.
Because of the blue slip, when Biden is able to place his judges, they are having a smaller effect on the direction of the law because they tend to replace Democratic appointees in blue states.
Should Biden win a second term, his success in transforming the judiciary will depend on a few open questions. If Republicans win back the Senate, they will likely do to Biden what they did to Obama in his last two years: block most of his judicial nominations. If Democrats hold the chamber, their excessive self-restraint might keep them from filling as many seats as they could—unless they abolish blue slips and name a more aggressive Judiciary Committee chair. (Sheldon Whitehouse’s name was mentioned in 2020, and Elizabeth Warren would be another good choice.) And finally, assuming Democrats have the chance to confirm more Biden judges, it remains to be seen whether they’ll pick more jurists with economic justice and labor backgrounds. Biden’s choice of political appointees at the DOJ, FTC, and elsewhere in the government should give us hope. And at this point, I think the Democrats finally get it: Courts matter.
As for Trump, we can be sure it will be more of the same—but even more so. He’s indicated that his choices will be yet more conservative and more willing to abandon accepted understandings of law and precedent to reach conservative outcomes. Indeed, he says his Supreme Court nominees have shown themselves to be too “independent.” Even though the first-term appointees were far to the right, they did typically have solid legal credentials. But in a second term, allies say Trump has vowed to move committed ideologues instead of qualified conservatives.
As Ty Cobb, one of Trump’s White House lawyers, recently said to The Washington Post about Trump’s first-term nominees, “They were intellectually qualified for the most part to become judges. I don’t think there’s a chance that will be the case in a second term.”
The possibility that ties to the Federalist Society may now make a nominee seem too moderate should make us fear even more from Trump’s second-term crop. Hard-right, pro-Trump judges like James Ho and Aileen Cannon are already untethered from statutory texts and precedent, and we can only imagine what judges even more unbound by law might do to tilt our system into autocracy.
