WASHINGTON — The Senate will confirm the 200th federal judge of President Joe Biden’s term on Wednesday, about a month earlier than then-President Donald Trump reached that mark, although Trump still has an edge when it comes to the most impactful confirmations — those at the U.S. Supreme Court and the nation’s thirteen courts of appeals.
The march to 200 will culminate in the appointment of Angela Martinez as a federal district judge in Arizona. The milestone reflects the importance that Biden, a former chairman of the Senate Judiciary Committee, and Senate Majority Leader Chuck Schumer placed on judicial confirmations after Trump left his enormous mark on the federal judiciary with the appointment of three judges of the Supreme Court.
“It’s a number – 200 – that we can all be proud of and shows how intensely focused we are on filling the court with lawyers who will strengthen our democracy and uphold the rule of law,” Schumer said.
The current pace of judicial confirmations for this White House came despite the fact that Biden came to power in 2021 with far fewer vacancies, especially on the influential appellate courts, than Trump did in 2017.
It is unclear whether Biden can eclipse his predecessor’s 234 judges before the end of the year. Democrats have been firmly backing the president’s judicial nominees, but some cracks in that resolve have emerged in recent weeks. Sen. Joe Manchin, D-W.Va., said he would not support nominees who lack some bipartisan support, and Nevada’s two Democratic senators opposed a nominee who would become the appellate court’s first Muslim judge. They did this after some law enforcement groups spoke out against the nomination.
The White House is clearly aware of the obstacles Democrats face as they rush to surpass Trump’s record on judges before Biden leaves office. It’s a highlight that remains a point of pride for the former president and senior Republicans who made it happen, including Senate Minority Leader Mitch McConnell. Filling dozens of judicial vacancies takes time on the Senate calendar, which is becoming scarcer as senators in the closely divided chamber shift into election-year campaign mode.
And of the more than forty current vacancies for judges across the country, half are in states with two Republican senators. That matters because for district judges, home state senators can still exercise a virtual veto over White House appointments, thanks to a long tradition in the Senate.
White House officials say they have no illusions about the challenges they face but believe reaching 235 is possible. The Republicans don’t like that.
“Unfortunately, they have learned from our example about prioritizing lifetime agreements,” said Sen. John Cornyn, R-Texas. Meanwhile, liberal advocacy groups are enthusiastic about the results so far.
“I just can’t rave enough about these judges,” said Jake Faleschini, who leads the nomination work at the Alliance for Justice. “It has frankly transformed the federal judiciary in terms of excellence, but also demographic and professional diversity.”
At this stage in his term, Trump had confirmed two Supreme Court justices and 51 appeals court judges to lifetime appointments. Biden has appointed one Supreme Court justice and 42 appeals court judges. Biden has more confirmations of district judges who hear civil and criminal cases. Those nominations are usually less hard-fought.
Biden has emphasized the need to add more female and minority judges to the federal court. On that front, 127 of the 200 judges appointed to the panel are women. According to Schumer’s office, 58 are black and 36 are Hispanic. And 35 judges are Asian American, Native Hawaiian and Pacific Islander, more than any other government, the White House said.
On the appellate courts, 30 of the 42 circuit judges confirmed under Biden are women, according to the White House. Thirteen Black women have been elected as circuit judges, more than all previous administrations combined.
Under Biden, more Hispanic judges have been confirmed to the appeals courts than any other administration.
As access to abortion remains a crucial priority for the Biden administration and a key argument for the president’s reelection bid, the White House is also pointing to several judges with backgrounds in the issue. Among them is now First Circuit Judge Julie Rikelman, who argued on behalf of the abortion clinic in Dobbs vs. Jackson, the 2022 ruling that established Roe vs. Wade dismantled; and Nicole Berner, a former attorney at Planned Parenthood who now serves on the 4th U.S. Circuit Court of Appeals.
Conservatives say it’s fine to have diversity, but that shouldn’t be the focus.
“I think the right benchmark is not to check boxes on nominees, but to try to find the men and women who will be faithful to the Constitution and the rule of law,” said Carrie Severino, president of JCN. conservative group that worked to increase support for Trump’s nominees.
According to the Pew Research Center, about a quarter of Trump’s nominated judges were women and about one in six were minorities.
Asked about the diversity of Biden’s nominees, Republican senators said there was too much focus on identity politics.
“I am interested in competent lawyers who administer fair justice. Now there are women who can do that. There are men who can do that. There are people of color who can do that,” said Sen. John Kennedy, R-La. “But their main characteristic that they are most proud of is their racial identity or gender identity, and being an activist. And I just don’t think the American people want to see that in their legal system.”
Proponents of diversifying the federal judiciary counter that people who appear in court have more confidence in the legal process when they see people who look like them. They said it is also important to diversify judges’ professional backgrounds to include more public defenders and people with civil rights or nonprofit backgrounds.
