Media coverage of the Trump administration often posited that he had transformed the judiciary by appointing 234 federal judges. While it is true his appointees to the Supreme Court have turned that body into an instrument of right-wing policy, the right-wing grip on lower courts is weaker than one might imagine, thanks to the number of Obama appointees (334) and the furious pace of nominees under the current president.
The White House on Thursday announced its eighth slate of nominees to federal courts, raising that total to 53. Of these, 14 have been confirmed. For comparison’s sake, by Sept. 1 of his first year, President Donald Trump had a grand total of six confirmed judges. By the end of the year, he had appointed just 19. Eventually, he was able to appoint 234 federal judges.
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The vast majority of cases never reach the Supreme Court, so the composition of lower courts, especially appellate courts that set precedent for lower courts throughout their circuits, is critical in determining the legal landscape.
The speed of President Biden’s nominations is perhaps not as striking as their diversity. Some 38 (72 percent) of his appointees are women, 15 are African Americans (28 percent), 11 are Hispanic (21 percent) and 12 are Asian American or Pacific Islanders (23 percent). The federal bench has traditionally been dominated by prosecutors and lawyers from large law firms. Under Biden, however, 17 nominees are public defenders (32 percent), 13 are civil rights lawyers (25 percent) and five are labor lawyers (9 percent).
Judges will continue to retire, take senior status or otherwise leave their seats vacant, so Biden will have more slots to fill over the course of his first term. But Congress must also consider expanding the overworked federal bench (currently authorized at 890 seats). In July, Maggie Jo Buchanan and Stephanie Wylie wrote for the Center for American Progress, a progressive think tank: “The federal bench underwent its last meaningful update in 1990, when Congress expanded the circuit courts by 11 permanent seats and the district courts by 61 permanent seats.” Before that, “In 1978, Congress expanded the federal courts under then-President Jimmy Carter by more than 30 percent at the district and appellate levels. After passage, President Carter immediately began filling those seats.”
Given that the country’s population since 1990 has grown from about 249 million to 331 million and the pace of litigation has certainly not slowed, the result is considerable backlog. “Across the country, many litigants must wait years to have their cases resolved. The average time between filing and trial in federal civil suits, for example, is two years,” Buchanan and Wylie write. That has spurred a cottage industry of arbitration, a private system of justice in which the results are often confidential. If one simply looks at population growth, the federal bench should be increased by at least 25 percent.
Republicans would certainly be in no mood to “give” Biden more seats to fill. But the Senate could decide to include an expansion of judges in reconciliation (judicial infrastructure!) or could agree that, say, 10 new seats could be added each year.
In sum, Biden is fulfilling his pledge to nominate qualified, diverse judges. Now Congress needs to give him more seats to fill both to expand the capacity of the federal courts and, yes, to diversify a judiciary that remains nearly 73 percent White and more than 66 percent male.