President Biden is nearly even with former President Trump on federal judicial confirmations at the same point in their presidencies. By Nov. 6 2019, Trump had confirmed 158 judges: two Supreme Court justices, 44 circuit court judges, and 112 district court judges. As of Nov. 7, 2023, Biden had confirmed 150: one Supreme Court justice, 36 circuit court judges, and 113 district court judges.
“They say that for a lot of presidents, their judicial appointments are the biggest influence on the country they’ll ever have. And certainly they are one of the longest lasting,” Walter Olson, a CATO Institute senior fellow, told Straight Arrow News.
The path to confirmation goes through the Senate Judiciary Committee, which was led by Sen. Chuck Grassley, R-Iowa during Trump’s term, and is now chaired by Sen. Dick Durbin, D-Ill., under President Biden.
Grassley helped shepherd two of Trump’s Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, through the confirmation process. He said that Trump’s three Supreme Court confirmations set him apart from Biden.
“I think it’s very clear with 6-3 division within the Supreme Court has led to a more strict construction of the Constitution,” Grassley told Straight Arrow News.
Durbin said Biden is making his mark with demographics. Biden has appointed 100 women and 98 people of color, including 49 Black judges. He has also appointed lawyers for labor unions and cause groups like the ACLU and Southern Poverty Law Center.
“I think we have introduced a new category, or class of federal judges, focusing on women, minorities and those with professional backgrounds that are different than their predecessors,” Durbin told Straight Arrow News.
“One area that’s interesting, because it got some support from places like my own CATO Institute, was to look not just at prosecutors but at public defenders and other lawyers representing the criminal defense side, which is just as much a part of our law as the prosecution side,” Olson said. “And Biden did exactly that. And he, in fact, has gotten some praise from Libertarians as well as from Democrats for appointing a number of public defense background lawyers.”
Trump prioritized ideology, including constitutionalists or originalists, who try to interpret the Constitution exactly as the founders intended.
“As part of his overall ideological screening, he appointed some lawyers whose main career background had been things like religious liberty litigation, and that has shown up in some of the controversial decisions that these judges have made,” Olson said.
While most of the the attention goes to Supreme Court nominees, the reality is an overwhelming majority of cases never get there. Federal courts of appeal handle more than 50,000 cases a year, while the Supreme Court is asked to review about 7,000 and only hears about 100 to 150.
“It’s much more for both Trump and Biden a question of — how do you want to reshape this institution by reshaping who sits on it very purposefully,” Olson said.
“The Democrats learned a lesson from Trump: move quickly on judges,” Grassley said.
Durbin told Straight Arrow News that he plans to do exactly that in 2024.
“I want every competent nominee to have their chance to be heard before the committee and a chance to be voted on, on the floor,” Durbin said.