The Senate on Tuesday confirmed President Biden’s 100th judicial nominee, marking a significant milestone in Democrats’ efforts to remake the courts after President Donald Trump filled more than 200 judicial openings during his term in office.
In a statement Tuesday, Senate Majority Whip Richard J. Durbin (D-Ill.), the chairman of the Senate Judiciary Committee, called Democrats’ efforts to “bring balance to the courts” one of their successes.
“This exceeds the pace of confirmations in the Trump and Obama Administrations,” Durbin said. “Equally as important as the numbers, we are seeing diverse nominees confirmed — in both their professional and demographic backgrounds.”
Biden vowed on the campaign trail that he would nominate the first Black woman to the Supreme Court and made good on his promise with the eventual confirmation of Supreme Court Justice Ketanji Brown Jackson. But he has also pledged to diversify the federal judiciary, overwhelmingly made up of White men for centuries, and has made significant progress in the lower courts.
On Tuesday, Biden — who formerly served as chairman of the Senate Judiciary Committee — called the confirmation of his 100th judicial nominee “a profound moment,” one that he had made a priority of his administration “since long before the inauguration.”
“Strengthening the federal judiciary with extraordinarily qualified judges who are devoted to our Constitution and the rule of law has been among my proudest work in office,” Biden said in a statement. “I’m especially proud that the nominees I have put forward — and the Senate has confirmed — represent the diversity that is one of our best assets as a nation, and that our shared work has broken so many barriers in just 2 years.”
The most recent confirmed nominees are emblematic of that diversity. Chung, the daughter of South Korean immigrants, will become the first Asian American judge to serve on the 3rd Circuit Court of Appeals, which serves parts of Pennsylvania, New Jersey, Delaware and the Virgin Islands. Mendez-Miró will become the first openly LGBTQ person to join the U.S. District Court for the District of Puerto Rico.
According to data from the Federal Judicial Center, of the 97 of Biden’s nominees who have been confirmed, 47 were minority women and 19 were minority men, compared with 26 White women and five White men. (Though the Senate has confirmed 100 judgeships under Biden, three of those nominees — Jackson, Florence Y. Pan and Sarah Merriam — were confirmed twice for two different courts and are being counted only once in the demographic tallies above.)
Diversity of confirmed federal
judges, by president
Biden
97 judges confirmed so far
Minority
women
Minority
men
47
19
26
5
White
men
White
women
Trump
229 judges in one term
11
26
148
44
Obama
324 judges in two terms
48
68
88
120
Bush
324 judges in two terms
37
21
50
216
Clinton
372 judges in two terms
21
69
85
197
Only shows individual judges. The Senate has
confirmed 100 judgeships for 97 individual judges.
Diversity of confirmed federal judges, by president
Biden
Trump
97 judges confirmed so far
229 judges in one term
Minority
women
Minority
men
47
19
11
26
26
5
148
44
White
men
White
women
Obama
Bush
Clinton
324 judges in two terms
324 judges in two terms
372 judges in two terms
48
68
37
21
69
21
50
85
88
120
216
197
Only shows individual judges. The Senate has confirmed 100 judgeships for 97 individual judges.
By contrast, of the 229 judges confirmed during Trump’s four years in office, only 11 were minority women and 26 were minority men. Forty-four of Trump’s confirmed judges were White women and 148 were White men.
The office of Senate Majority Leader Charles E. Schumer (D-N.Y.) noted in December that the Senate, under Biden, has confirmed more people of color to Circuit Court judgeships; more Asian American and Native American women to the federal bench; and more public defenders to appeals courts than under any other president.
“Senate Democrats have focused intensely on expanding the diversity of our courts, and not just in terms of demographics but in terms of experience, professional experience too,” Schumer said in a statement Tuesday. “We are working hard not only to add more women, more people of color, more lawyers from unique backgrounds to the bench, but people of different walks of life.”
Russ Feingold, the former Democratic senator from Wisconsin who is now president of the American Constitution Society, a liberal judicial group, said the Senate was moving “well ahead of Trump’s pace,” noting that Trump did not hit his 100th confirmed judge until May 2019, his third year in office.
However, Feingold said that the Senate picked up the pace dramatically in the second half of 2019, and ultimately confirmed 234 of Trump’s nominees. Most of the states with judicial vacancies coming up, he added, are in states with one or two Republican senators, like Florida, Texas and Louisiana.
“This is the opposite of the moment to slow down. If you rest on your laurels, you’re going to end up way behind,” Feingold said. “It’s a situation where it’s terrible to blow a lead. You don’t want to be the Philadelphia Eagles here. It’s literally halftime.”
Feingold and other liberal judicial groups have argued steadfastly for the elimination of “blue slips,” a Senate tradition that has in the past allowed senators to block district court nominees from their home states. Though traditionally it made sense to defer to home state senators, now those blue slips can and have been used simply for political obstruction, Feingold said.
Feingold also noted that Trump was ahead after two years when it came to filling vacancies in the courts of appeals. As The Washington Post’s Aaron Blake reported in November:
Thanks to a series of variables, Trump was able to completely recast not just the Supreme Court but also overhaul the nation’s appeals courts — the most powerful judges below the nation’s highest court — by replacing judges that had been nominated by Democrats. Biden’s ability to reverse that has been stunted, and his appointees consist mostly of district court judges and replacing Democratic-nominated judges with new Democratic-nominated judges.
That said, one of the few reasons Biden has the opportunity to fill so many lower court vacancies is because Democrats held onto their majority in the Senate in November’s midterm elections.
Christopher Kang, chief counsel for the liberal judicial group Demand Justice, said Tuesday that Biden had already left an important judicial legacy.
“He has begun to restore balance to the courts with 100 judges already confirmed, and while doing so he has written a whole new playbook for what types of lawyers Democrats consider when selecting federal judges,” Kang said. “The professional, racial and gender diversity of his nominees is unmatched, and it will set the bar for all future presidents.”
There have also been some surprising retirements of relatively young federal judges who had life tenure, which has created unexpected openings for Biden. Last year, Gregg Costa stepped down as a judge from the 5th U.S. Circuit Court of Appeals to join a private practice. Last month, U.S. Circuit Judge Paul Watford announced he would resign from the 9th U.S. Circuit Court of Appeals in May, also to return to private practice. Gary Feinerman stepped down as the judge for the U.S. District Court for the Northern District of Illinois last year, after 12 years on the federal bench.
About this story
Data from the Federal Judicial Center and Russell Wheeler from Brookings Institution.
Ann Marimow contributed to this report.