The president is undoing Trump’s judiciary takeover one nomination at a time, and it won’t be easy to roll back his gains should there be a MAGA restoration.
WASHINGTON MONTHLY
On Wednesday, the Senate confirmed President Joe Biden’s 200th and 201st federal judge—including one Supreme Court justice and 200 lower court judges.
Biden reached that milestone faster than Donald Trump did in his term, but whether Biden can top Trump’s total of 231 lower court judges in the remaining eight months of his tenure remains to be seen. The federal judiciary lists 69 vacancies and planned retirements, but as of today, only 24 nominees are in the confirmation queue.
Nevertheless, as it stands, Biden has successfully blunted Trump’s attempt to remake the federal judiciary.
Trump’s most consequential judiciary legacy is the hardest to undo—transforming the Supreme Court from a 4-4 ideological split (following the death of Antonin Scalia) into a 6-3 hard-right supermajority.
But you may recall that during the Trump presidency, much-panicked ink was spilled about how he was stacking the lower courts, particularly at the Circuit Court appellate level, where most cases are ultimately decided since very few are taken up by the Supreme Court. Trump installed 54 Circuit Court judges in one term, five more than Barack Obama secured over two terms. He flipped three of the 13 appellate courts from Democratic-to-Republican appointee majorities—the Second, Third, and Eleventh Circuit Courts of Appeals—giving Republicans a nominal majority in seven.
That was a good run for a single term. Biden, though, has been able to reverse much of Trump’s lower court gains.
According to Ballotpedia, 455 federal judges with lifetime tenure are Democratic appointees versus 370 Republican appointees. Setting aside the Supreme Court, the lower courts are 452 Democratic and 364 Republican.
