Biden marks confirmation of 235 judges, one more than under Trump, as Democrats hail more diverse judiciary

WASHINGTON – Nearing the end of his tenure, President Joe Biden on Thursday celebrated the Senate’s confirmation of 235 judges during his presidency, eclipsing the total confirmed under his predecessor.

In remarks at the White House alongside Senate Majority Leader Chuck Schumer, D-N.Y., and Sen. Dick Durbin of Illinois, the top Democrat on the Senate Judiciary Committee, Biden hailed the diversity his nominees have brought to the federal bench. Senators confirmed the 235th federal judicial nominee before Congress recessed in December, surpassing by one the number of lifetime appointments by former and incoming President Donald Trump in his first term.

“Judges matter, shaping the everyday lives of Americans, protecting our basic freedoms,” Biden said. “Most importantly – and I never thought I’d be saying this – they’ll uphold the Constitution.”

The Senate confirmed 10 federal judges nominated by Biden in Washington state, concluding with the confirmation of Rebecca Pennell in November as a judge in the U.S. District Court for the Eastern District of Washington.

Trump’s imminent return to the Oval Office casts a shadow over an otherwise bright spot for Democrats, who succeeded in filling all but 39 vacancies in federal district and appellate courts. With Republicans taking control of the White House and both chambers of Congress, federal judges could play a leading role in countering policy decisions made in D.C.

Carl Tobias, a law professor at the University of Richmond who focuses on the selection of federal judges, said the number of confirmations represents “an important milestone,” especially because Biden’s nominees have a wider range of professional backgrounds than has typically been represented on the federal bench.

In addition to that professional diversity, Biden’s nominees have also added to the demographic diversity of a federal judiciary that has historically been dominated by white men. In a news release, the White House touted a “record number of women, Black, Latino, AANHPI, Native American, Muslim-American, and LGBTQ judges,” using acronyms that refer to Asian Americans, Native Hawaiians and Pacific Islanders, and to lesbian, gay, bisexual, transgender, and queer people.

“When I ran for president, I made a promise that I’d have a bench that looks like America, that taps into the full talents of this nation,” the president said. “We have a record number of judges with backgrounds and experiences that have long been overlooked in the federal judiciary, like advocates for civil rights, workers’ rights, immigrant rights and so much more.”

During Biden’s presidency, the Senate has confirmed 187 district court judges, 45 appellate court judges, two judges to the U.S. Court of International Trade and one Supreme Court justice. Although there are only 39 vacancies in the federal judiciary, Tobias said there are roughly the same number of judges whose age and years of service qualify them for “senior status,” a quasi-retirement that would allow Trump to nominate their replacements.

Linda Jellum, a law professor at the University of Idaho, said that same dynamic applies in the Supreme Court, where conservative Justices Clarence Thomas and Samuel Alito, ages 76 and 74 respectively, may choose to retire so that Trump can replace them with younger judges. That could entrench conservative control of the Supreme Court, where Republican appointees hold a 6-3 majority after Trump made three appointments, for a generation.

The relatively small number of vacancies means that Trump won’t have the same ability to reshape the lower courts that he did in his first term, when then-Senate GOP Leader Mitch McConnell of Kentucky had strategically kept many judgeships vacant.

Trump’s success in remaking the judiciary drove Senate Democrats to make confirming judges a top priority, especially after their party lost control of the House in 2022.

“In some ways, what Democrats did was play hardball the same way that Republicans did,” Tobias said.

Just before Christmas, Biden vetoed a bill that would have added 66 new federal district court judge positions across the country, despite bipartisan support for the legislation that would have staggered the new appointments over the course of three presidential administrations. Jellum said that move seems designed to limit the number of vacancies Trump will be able to fill.

Federal judges were further empowered by the Supreme Court’s ruling in June, in a 6-3 decision along ideological lines, that overturned a 40-year-old legal doctrine that deferred to executive-branch agencies on questions that Congress had not directly addressed.

Under the new precedent, judges can interpret ambiguous statutes themselves.

Jellum said that change could mean less dramatic policy changes between administrations, but it will require judges to have a different skill set than they have typically used. When Trump is inaugurated as president on Jan. 20, court challenges to his administration’s policies are likely to ensue.