On Wednesday, the Senate confirmed President Joe Biden’s 200th and 201st federal judge—including one Supreme Court justice and 200 lower court judges.
Biden reached that milestone faster than Donald Trump did in his term, but whether Biden can top Trump’s total of 231 lower court judges in the remaining eight months of his tenure remains to be seen. The federal judiciary lists 69 vacancies and planned retirements, but as of today, only 24 nominees are in the confirmation queue.
Nevertheless, as it stands, Biden has successfully blunted Trump’s attempt to remake the federal judiciary.
Trump’s most consequential judiciary legacy is the hardest to undo—transforming the Supreme Court from a 4-4 ideological split (following the death of Antonin Scalia) into a 6-3 hard-right supermajority.
But you may recall that during the Trump presidency, much-panicked ink was spilled about how he was stacking the lower courts, particularly at the Circuit Court appellate level, where most cases are ultimately decided since very few are taken up by the Supreme Court. Trump installed 54 Circuit Court judges in one term, five more than Barack Obama secured over two terms. He flipped three of the 13 appellate courts from Democratic-to-Republican appointee majorities—the Second, Third, and Eleventh Circuit Courts of Appeals—giving Republicans a nominal majority in seven.
That was a good run for a single term. Biden, though, has been able to reverse much of Trump’s lower court gains.
According to Ballotpedia, 455 federal judges with lifetime tenure are Democratic appointees versus 370 Republican appointees. Setting aside the Supreme Court, the lower courts are 452 Democratic and 364 Republican.
Biden has only notched a single Supreme Court justice but 42 Circuit Court judges. Seven of those 42 replaced Republican appointees. The New York-dominated Second Circuit Court of Appeals flipped back to a Democratic majority following the 2021 death of a Republican appointee, Peter Hall (although the Vermonter was considered a centrist.) Now, the Democrats hold majorities in seven of the 13 appellate courts.
Biden is on the verge of reclaiming the mid-Atlantic Third Circuit, which had an 8-6 Republican majority when he took office, although he has hit a snag.
He briefly tied up the Third Circuit last year when Cindy Chung—one of Biden’s record-breaking 35 Asian-American judicial appointees—replaced the retiring Republican jurist D. Brooks Smith. But a few months later, an Obama appointee, Joseph Greenaway, retired. Complicating matters further, Biden’s replacement nominee, Adeel Mangi, has been victimized by a guilt-by-association smear campaign. Republican senators began the attacks, but three Democratic senators have announced their opposition, making Mangi’s confirmation impossible in the narrowly divided upper chamber. The White House appears reluctant to publicly admit defeat of the jurist who would have been the first Muslim federal appellate judge. Still, so long as Mangi twists in the wind, Biden can’t nominate someone else with a chance of succeeding.
Another Third Circuit vacancy, involving a Republican-held seat, opened up this month with Kent Jordan’s announcement of a January 2025 retirement. If Biden can fill both vacancies this year, the Third Circuit would have an 8-6 Democratic majority.
Biden is making surprising inroads into the Midwest’s Seventh Circuit. In November of 2020, only two of the court’s 11 judges were Democrats. Yet Biden has already flipped two seats, one of which was left open after the Trump administration blew an opportunity. In 2018, Trump aides leaned on the then-79-year-old Michael Kanne to scram and let one of his former clerks, Tom Fisher, take his place. Kanne agreed as a favor to Fisher. But Fisher used to work for Vice President Mike Pence in the Indiana governor’s office, and, according to Politico, Pence “feared his nomination would dredge up events and information politically damaging to Pence.” Fisher wasn’t nominated, and Kanne retracted his retirement plans. Then Kanne passed away on Biden’s watch.
A third potential Seventh Circuit flip cleared the Senate’s Judiciary Committee last month. One of the remaining Republican judges is a 75-year-old Ronald Reagan appointee, Frank Easterbrook (the brother of Washington Monthly Contributing Editor Gregg Easterbrook). If Democrats can hold the White House and Senate long enough, they could turn the Seventh into a 6-5 Democratic majority.
Would Biden lose his lower court gains if Trump reclaimed the White House and Republicans took back the Senate? Maybe not by much. As of late, both parties have taken great care to nominate relatively young people to the judiciary, so fewer senior citizens are on the bench nearing retirement or expiration. By my count, only 13 Democratic appointees are left who will be at least 70 years old by year’s end and haven’t already announced their retirements.
Of course, the biggest prize remains the Supreme Court. Since packing the Court—thankfully, to my mind—appears off the table, the most likely way for Democrats to restore ideological balance is to wait out the two eldest conservative justices: Septuagenarians Samuel Alito (74) and Clarence Thomas (75). Chief Justice John Roberts is 69, and the three Trump-appointed justices are in their 50s. But even if the president and Senate Democrats don’t win the actuarial jackpot, they can at least take pride in strengthening the lower courts.
