Biden’s freshman judicial nominations – process

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One of the highlights of President Biden’s uneven first twelve months is the unprecedented demographic and career diversity – and record number – of his district and appellate court appointments (especially when compared to the slow pace of confirmations from the executive). The first-year numbers, of course, are snapshots — the Trump administration’s modest first-year court confirmation figure did not predict its four-year total, second only to Jimmy Carter’s.

That said, Biden’s 42 freshman appointees outnumber President Kennedy’s. Biden:

  • submitted a significant number of candidates at the beginning of the year;
  • massively nominated to courts without opposition party senators; and
  • saw its candidates receive unified Democratic support (and strong Republican opposition) in Senate votes.

Subsequent articles will discuss the impact of early nominations and Biden’s prospects in 2022 (and beyond).

Biden’s first twelve months of nominations have topped all predecessors in the four decades since the process became more controversial. He was one more than President Reagan (although Reagan was also a Supreme Court appointee). Kennedy had 56, thanks in part to a large legislative infusion of new judgeships.

The way Reagan and Biden hit their totals illustrates why today’s presidents may need party control of the Senate in order to seat many judges. Reagan submitted 43 freshman nominations; the Senate confirmed 40 — by motions of unanimous consent, in about 30 days. Biden got two more confirmations. The speed of confirmations was a median 119 days for district judges and 103 days for circuit judges. And he submitted almost one and a half times more candidates.

No confirmation was unanimous; indeed, 12 of its 19 district appointees and 12 of its 13 circuit appointees received 40 or more negative votes. Democratic unity was vital.

Almost all of the lower court appointees of Reagan and HW Bush were approved by unanimous consent or voice vote. Over 90% of Clinton and Bush district judges were confirmed unopposed. That percentage dropped nearly 30 points with Obama, then sank like a rock under Trump. At the same time, strong opposition – measured by 40 or more “no” votes – rose sharply after Obama. Opposition to circuit nominees was greater.

Figure 2

Had the filibuster been in place, requiring 60 votes to make a judicial nomination, Biden’s (and to a lesser extent Trump’s) confirmation totals would have been far lower.

The closest vote on a Biden nominee was 50-49 for a Ninth Circuit Court of Appeals nomination that stalled in the Judiciary Committee, fueled by what the nominee called her “overheated” criticism. of then-Justice Brett Kavanaugh’s Supreme Court nomination. By comparison, another nominee was confirmed as the first African American on the Federal Circuit Court of Appeals with just 34 negative votes.

Some opposition to Biden’s nominees was a reward for Democratic senators’ opposition to Trump’s nominees. Other senators likely agreed with a colleague who voted against all of Biden’s nominees because, as he put it, “I really don’t like them.”

Senator Lindsey Graham (RS.C.) expressed the old-fashioned view that “the president has the right to select the judges. . . and as long as they are qualified, they usually have to be confirmed. Graham and GOP moderate Susan Collins (Maine), in addition to backing less controversial candidates, voted for the 12 district appointees who received 40 or more negative votes; moderate Lisa 40-plus downvote circuit nominees (Graham voted for five).

Rhythm of appointments

Biden loaded the process: 40% of his nominees came in the second quarter of his freshman year. Only George W. Bush has approached this level.

picture 3

Both came into office with aggressive nomination programs. Conservative legal groups pitched like-minded candidates to Bush. Biden had chaired the Senate Judiciary Committee, is committed to diversity and, perhaps, hopes to appease progressives upset with his opposition to structural change to the Supreme Court. And neither faced freshman Supreme Court vacancies. Clinton’s first lower court nominees came days after Justice Ginsburg was confirmed on Aug. 3. Trump submitted only one nominee before Judge Gorsuch’s April 7 confirmation. In the absence of Supreme Court nominations, Reagan and Obama might have submitted more than the handful they did while the nominations were pending.

Senate appointments and delegations

Fifty-eight (94%) of Biden’s 62 district nominations and 11 of his 13 circuit nominations were for courts with two Democratic senators or no senators (e.g., Puerto Rico). Presidents in their first year have increasingly concentrated candidates in this way, as Senate leaders have historically granted senators from home states of either party at least a right of say – and sometimes a veto – over judicial appointments. During the Obama administration, the Senate leadership did not process any nominations that were opposed by home state senators. During the Trump administration, home state senators influenced district but not circuit nominations.

The nomination process slows as White Houses negotiate with home state senators, seeking candidates that those senators will not oppose once nominated. In general, White Houses have found smoother sailing with senators from their own party. Table 4 shows the median days from vacancy date to nomination for all candidates, then for court vacancies without opposition party senators. With four exceptions, nominations have generally arrived faster in these states. However, it’s important to note that the home state’s Republican senators weren’t the only obstacle to quick nominations. For example, a vacancy in the District of Columbia, advertised in February 2021, waited 11 months for a candidate.

Figure 4

For some reason, there has been an increase, albeit uneven, in first-year court appointments without senators from opposition parties – from 33% for vacancies in Reagan’s first year to 53% for Trump and 85% for Biden. There was a similar trend in freshman nominations for district court vacancies, rising from 26% in Reagan’s freshman year to 76% for Trump to 94% for Biden.

Biden’s few split-delegation nominations were for a Pennsylvania seat on the Third Circuit Court of Appeals and four in districts in Ohio and Wisconsin. Biden’s only nomination in a state with two Republican senators (Tennessee) led one of his senators to complain that he was “incredibly disrespectful of the precedent that was bestowed on the other side.” Democrats responded that Republicans during the Trump presidency had abandoned deference to home state senators.

In summary, the Biden administration’s aggressive nominating effort and Unified Senate Democrats have secured more freshman judicial confirmations than any president since Kennedy in 1961. My next article in this series will examine the impact of these appointments on the judiciary.


Footnote

1. Federal Judicial Center Biographical Database Data, Administrative Office of U.S. Courts Judicial-Vacancy and Authorized Judges Data, Library of Congress presidential appointmentsand the data I have collected and analyzed from these and other sources.

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