Last April, President Joe Biden formally nominated his first set of judicial candidates: a group of 11 nominees that included federal district court judge Ketanji Brown Jackson, whom Biden sought to elevate to the D.C. Circuit Court of Appeals; Candace Jackson-Akiwumi, a former federal defender tapped for a seat on the Seventh Circuit Court of Appeals; and Deborah Boardman, another former public defender nominated to sit on the federal district court in Maryland.
“This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession,” Biden said at the time. “Together they represent the broad diversity of background, experience, and perspective that makes our nation strong.”
One year later, the Senate has confirmed 58 of Biden’s judicial nominees, and Jackson a second time, to replace Justice Stephen Breyer on the Supreme Court. Fifteen of these individuals are now serving on the powerful courts of appeal. As of January, Biden’s total surpassed all other presidents in their first years in office except for President John F. Kennedy.
The Biden administration has broken new ground when it comes to candidates’ demographic and professional backgrounds: Two-thirds of his nominees are people of color, and nearly three-quarters are women. Among them are Judge Zahid Quaraishi, the first Muslim American federal judge, and Judge Florence Pan, the first Asian American woman to ever serve on the D.C. District Court. By contrast, 16 percent of President Donald Trump’s confirmed nominees were people of color, and just 24 percent were women. Twenty-two of Biden’s nominees are former public defenders, bringing a badly-needed degree of professional diversity to an arena where former prosecutors and corporate lawyers dominate. Jackson will be the first Supreme Court justice with public defender experience once she takes the bench next term.
Because Article III judges enjoy life tenure, Biden’s judicial nominees will have an impact long after he leaves office. His four confirmed nominees to the Second Circuit Court of Appeals have tipped the scales so that Democratic presidents have appointed seven of the 13 active judges on that bench. Biden’s four additions to the Ninth Circuit Court of Appeals, to which President Donald Trump added ten judges, yields a court with 20 of 39 active judges appointed by Democrats. The expected confirmation of Arianna Freeman to the Third Circuit Court of Appeals will balance that court, making her the seventh Democrat-appointed judge on a bench of 14.
Still, the administration faces challenges as the midterms approach. Of the nominees that Biden has put forward, too, 22 remain unconfirmed. In particular, the Fifth, Sixth, and Seventh Circuit Court of Appeals are composed of a majority of Republican-appointed judges. Currently, the Fifth and Sixth circuits each have two vacancies, and the Seventh has one. Particularly in light of how much damage Fifth Circuit judges are inflicting on the rights of people conservatives don’t like, the chance to fill these vacancies is not one the White House can afford to pass up.
Thus far, most of Biden’s district court nominees have come in states with two Democratic senators. This is likely due to a Senate tradition known as blue slips, which requires the senators from a nominee’s home state to return literal blue slips of paper to the Senate Judiciary Committee to approve the candidate. During the Trump administration, Senate Republicans got rid of blue slips for appeals court nominees. The Biden White House, however, has continued to honor the tradition for district court nominees, which has left out more than half the country out of the ongoing overhaul of the judiciary. Currently, 79 vacant judgeships have no nominee; of these, 38 are in states with at least one Republican senator.
During Jackson’s confirmation hearings last month, South Carolina Senator Lindsey Graham underscored the importance of Senate control to the confirmation process. Jackson, he argued, would not have been confirmed by a Republican-controlled Senate; to have any hope of filling a vacant Supreme Court seat, he continued, Biden would have had to choose someone “more moderate.”
These comments do not engender much optimism about Biden’s ability to confirm judges if control of the upper chamber changes hands in January, and should be a warning for Senate Democrats tempted to rest on their laurels after Jackson’s confirmation. They have work to do, and the clock has been ticking for a while.
