Editor’s note (January 26, 2021): Stephen Breyer, one of three liberal justices on the Supreme Court, will retire at the end of the court’s current term. Joe Biden will nominate his successor, ensuring the court maintains its 6-3 split between conservatives and liberals. He previously promised to put the first black woman on the court.
DEMOCRATS ARE accustomed to feelings of despair about the increasingly conservative Supreme Court. But on the lower courts, President Joe Biden and Senate Democrats have wasted no time packing the federal bench. The 40 justices confirmed so far are the most at this point in a president’s first term since Ronald Reagan, and more than double the mark set by Donald Trump in his first year. Trump packed the judiciary with young, conservative judges, confirming almost as many on the appeals courts in his one term as Barack Obama did in two. Biden is reshaping the judiciary in a more progressive direction.
This has depended on close cooperation with the party’s leader in the Senate, Chuck Schumer. Along with an ambitious legislative agenda, Schumer has prioritized precious voting time on the Senate floor for judicial appointments, often at the expense of confirming executive branch officials. A focus on court vacancies in states represented by Senate Democrats has secured fewer objections from Republicans on committee.
Biden has also elevated a much more diverse range of judges than his predecessors. He has already promoted more black women to the federal appeals court than any other president, after Trump failed to appoint a single black judge to a federal appeals court, the first full-term president not to do so since Richard Nixon. 80% of confirmed appointed judges are women. Research suggests that such racial and gender diversity is likely to lead to different judgments about affirmative action, workplace discrimination, and more.
The background of the judges also marks a break with the past. For decades, the surest path to becoming a federal judge was first to be a prosecutor or a partner in a major law firm. Biden’s appointments have included more public defenders than those appointed in the first years of his four immediate predecessors combined. Only a confirmed circuit court judge is a former prosecutor.
This reflects the shift among rank-and-file Democrats toward a more lenient stance on crime in recent years and a belief that judges have been too friendly with prosecutors. Public defenders, they hope, will bring a different perspective. “Having someone who for years has stood by people who are often in the worst moments of their lives is an experience that not everyone can bring to the bench,” argues Geoff Burkhart of the National Association for Public Defense. .
With elections looming in November and a possible loss of control in the Senate, time is not on the Democrats’ side. George Washington University’s John Collins suggests that Biden, the former chairman of the Senate Judiciary Committee, is well aware that those appointed today will shape the law for years after he leaves office. A 30-year-old judge can be expected to serve for more than two decades before retiring. Unlike his recent predecessors, however, Biden has yet to get the ultimate prize: the appointment of a Supreme Court justice.
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This article appeared in the US section of the print edition under the headline “Packing the Courts.”