The Washington PostDemocracy Dies in Darkness

Opinion This is Biden’s biggest unnoticed success

President Biden applauds as Ketanji Brown Jackson delivers remarks at the White House on her confirmation to be Supreme Court Justice on April 8. (Bill O'Leary/The Washington Post)

When Joe Biden secured the Democratic nomination for president in 2020, many progressives were wary of their party’s new leader. He had run as the moderate in the race and had a long history of seeking the center of gravity within the party, which didn’t always mean standing up for progressive goals.

With the party’s recent round of legislative successes, those progressives are hardly overjoyed, but they do feel that things are going reasonably well. Yet there’s one area where Biden can fairly be said to exceeded the left’s expectations: the appointment of judges.

A new analysis from the Pew Research Center shows that Biden, a president whose electoral appeal rested in no small part on him being a supposedly reassuring older White man, has appointed a far more diverse set of judges than any president in history, including Barack Obama and Bill Clinton.

Pew compared Biden with previous presidents at the same point in their terms, and the numbers show the success of both the White House and Senate Democrats in moving through his nominees:

  • Biden has had 75 judges confirmed, more than any president at this point in his term since John F. Kennedy.
  • Seventy-six percent of Biden’s confirmed judges are women, more than any president in history. Obama ended up with 42 percent women among his appointees; Trump had only 24 percent, while Bill Clinton had 28 percent.
  • A full 65 percent of Biden’s appointees have been non-White, compared to 40 percent for Obama and 12 percent for Trump at this stage.

Biden and the people finding judicial nominees for him have also put a premium on a greater diversity of experience, seeking not just former prosecutors and sitting judges but also people who have worked as public defenders. The most notable example is Justice Ketanji Brown Jackson, the first public defender to sit on the Supreme Court.

Follow Paul Waldman's opinionsFollow

You don’t hear much criticism from Republicans of this record, since it’s hard to say “Biden should appoint more White men to the bench!” and not sound racist and sexist. They did, of course, engage in a forthright round of race-baiting when Justice Stephen G. Breyer retired and Jackson was appointed to fill his seat, but since then, they’ve been largely quiet on the issue.

That might be because so much focus has been on the Supreme Court, where Republicans successfully engineered a 6-3 conservative supermajority. That supermajority does in some ways render this newly diverse crop of judges less relevant than it might be, given how their opinions on major issues can and will be overruled.

Republicans also hope to take back the Senate in November’s elections, and if they do, they are likely to essentially shut down all judicial confirmations for the remainder of Biden’s term. That’s what they did to Obama: He saw more than 300 judges confirmed in his first six years in office, but only 20 of his picks were confirmed in his final two years, after Republicans took over the Senate in the 2014 elections.

Which is why Trump’s appointees account for a full 28 percent of the federal judiciary despite the fact that he served only one term in office. When Trump took over for Obama, there were 105 vacancies on the federal bench for Trump to fill.

And fill them he did, appointing a collection of inexperienced and ideologically extreme lawyers. A number of them were rated “not qualified” by the American Bar Association, yet they still received support from nearly every Republican senator. Their most important qualifications were that they would be loyal to the GOP and that they were young enough to serve for a long time.

Thanks to some weak Republican candidates, Democrats have a pretty good chance of holding on to the Senate, which would mean Biden could keep filling judicial vacancies. And his future picks are likely to be as diverse as the ones he has made so far.

But that diversity isn’t primarily a function of Biden’s goodwill and fervent desire to diversify the bench. I’m not claiming he doesn’t believe in what he’s doing on this score; he certainly does. But just as Trump stocked the judiciary with a succession of right-wing hacks because it was what Republicans wanted, Biden is likewise influenced by forces within the Democratic Party.

Even before the Supreme Court went on the tear that culminated with overruling Roe v. Wade, Democrats were becoming increasingly aware of the importance of the courts. And in a party that is supposed to represent the diversity of America, it simply wouldn’t have been possible for any Democrat elected in 2020 to have appointments that were only as diverse as, say, Bill Clinton’s (28 percent women, 25 percent non-White).

So while Biden and his aides delivered a diverse bench, it was the party and the progressive movement that made them do it. Everyone should get a share of the credit.