By Russell Wheeler
President Biden’s 42 lower-court appointments within his first year topped all predecessors since President Kennedy. As explained in the first part of this mini-series, Biden frontloaded nominations, focused on courts with no opposition-party senators, and had a slim but united (and filibuster-free) Senate majority despite stiff Republican opposition.
At this point, Biden has:
- nominated by any measure the most demographically diverse set of judicial candidates in history and by doing so has, in just one year, reduced slightly but noticeably the percentage of white males among active-status judges;
- appointed an unprecedented number of former public defenders, and
- filled proportionately more statutory judgeships than most predecessors.
Judgeships filled
Biden’s appointees were seven percent of the 175 circuit judges and five percent of the 611 district judges in active status on January 20.
Biden’s percentages are similar to Nixon’s and Reagan’s first year figures; most recent presidents’ were in the one to three percent range (although in 1961 President Kennedy filled 14% of the judgeships).
Party-of-Appointing-President
Table 1 shows that, after one year, Republican appointees had a slight majority among active status circuit judges, as Democratic appointees did among district judges, but, those figures are almost meaningless, varying as they will as appointees of both parties leave active status and the appointment process proceeds at its own pace to replace them.
Only 14 of Biden’s 29 district appointees replaced Republican appointees; three of his 12 circuit appointees did. (The appointments and vacancy-creation mix also shifted the Second Circuit’s court of appeals active judges to a slight Democratic appointee majority; confirmation of a January 19 Third Circuit nominee would create an even split on that court of appeals).
These snapshots say little about whether Biden can reshape the courts as to party-of-appointing-president. In four years, President Trump increased the proportion of Republican appointed circuit judges from 44% in January 2017 to 55%. Whether Biden can achieve a similar change is an open question. Trump was aided by Republican control of the Senate for all four years of his term.
“Personal background” diversity
Year-end assessments, such as Bloomberg Law’s and ABC’s FiveThirtyEight, have emphasized the demographic and professional diversity of Biden’s appointments—as has the White House, which said in December that Biden would “continue to… ensure that the nation’s courts reflect… diversity… in terms of personal and professional backgrounds.” Biden emphasized in a December commencement address that he had appointed more Black women circuit judges “than any administration in American history…. The previous record was three Black women in eight years. We’ve confirmed four in less than eight months ….” In all, previous presidents appointed eight Black women to the court of appeals (Clinton appointed three). Assuming confirmation of pending nominees, Biden will have appointed eight (and counting), one aspect of continuing efforts of varying intensity by presidents since Carter to change the face of the judiciary.
White males are the only category where Biden’s appointees are proportionately fewer than all active status judges. Biden has only appointed two, reducing their proportion among active status judges from 51.4% to 48.7%.
“Professional background” diversity
In December 2020, the incoming White House counsel encouraged Democratic senators to recommend potential nominees “whose legal experiences have been historically underrepresented…, including… public defenders.” (Public defender offices, largely government-funded, provide lawyers to criminal defendants unable to retain their own lawyers.)
Biden’s push to appoint more former defenders may reflect his brief stint as a defender. And “[p]rogressives,” as summarized in one of many accounts, “have lamented the long-standing tendency of presidents in both parties to prioritize corporate lawyers and prosecutors for federal judgeships.” In fact, over the last half century, federal judicial recruitment has increasingly drawn district judges from state (and term-limited) federal judiciaries (around 40%—46% for Obama, 39% for Trump). Roughly 10% to 15% were government lawyers (almost entirely prosecutors) when appointed. About 30% came from private practice—about half from large law firms. (Over the same span, a larger proportion of circuit judges came from the judiciary.)
By any measure, though, public defenders have been underrepresented. And in his commencement address, Biden accurately claimed to have appointed “more former public defenders to the bench than any administration in American history.” “Former public defender,” however, is not a precise term. It can describe a career defender—or a judge who got a year’s litigation experience as a defender after law school. Table 3 shows that over a third of Biden’s first year appointees had substantial public defender experience (three or more years), several times more than Obama’s and even more than the other presidents.
To summarize, in his first year, Biden has appointed an unprecedented number of women and members of ethnic and racial minorities to the bench—enough to shift the proportion of white males on the bench. Likewise, he has appointed a larger proportion of lawyers who served as public defenders, most for more than a short stint. The comparatively large number of judicial appointees (42)— occupy a larger proportion of judicial seats than did those of most of his predecessors. The unknown, at this point, is whether he can maintain the pace in 2022 and beyond, a question about which I’ll offer some speculation in my next and final post in this series.
Footnote
* Data from Federal Judicial Center Biographical Data Base , Administrative Office of U.S. Courts judicial-vacancies and authorized judgeships, Library of Congress presidential nominations, and data I have gathered and analyzed from these and other sources.
