As President Joe Biden and former President Donald Trump debate tonight, Americans might experience a broad spectrum of reactions. However, citizens should focus on what each contender accomplished during his tenure by comparing how Biden and Trump discharged the major responsibilities that the U.S. Constitution assigns the president.
One such duty is nominating exceptional prospects to fill judicial vacancies across the Supreme Court, the 13 appeals courts and the 94 district courts. In Biden’s presidency, his masterful, rigorous leadership, fortified during a half century of service as president vice president and U.S. senator, has enabled Biden to smoothly fulfill this central responsibility. Biden revitalized and enhanced the processes through which he nominates and the Senate confirms exceptionally talented, mainstream candidates who substantially improve diversity regarding experience, ideology, ethnicity, gender and sexual orientation. These initiatives allowed Biden to nominate and the Senate to approve 200 federal jurists.
Credit: Handout
Credit: Handout
In May, the chief executive and the Senate attained numerous milestones. They confirmed the 156th district judge, a total that Trump only achieved in September 2020. The vast majority earned the highest American Bar Association rating of well qualified. Biden refused to nominate any candidate whom the ABA ranked not qualified, Trump named 10 with the lowest rating, and the GOP-led Senate majority overwhelmingly confirmed eight.
Trump and the Republican majority also confirmed three extremely conservative justices and 54 similar appeals court judges. Indeed, Trump explicitly claimed responsibility for appointing the justices who overturned Roe v. Wade in the 2022 Dobbs v. Jackson Women’s Health Organization case. Trump and the GOP majority confirmed these justices and judges by violating Senate rules and customs. Most notably, the Republican majority created a “circuit exception” to the Blue Slip policy without convincing justification, preventing many home-state senators from vetoing many highly conservative appellate nominees.
Biden, meanwhile, increased experiential diversity by approving a dozen circuit nominees who had represented many defendants facing criminal charges. Moreover, he enhanced other important forms of diversity. For example, 133 Biden confirmees are women and 125 are people of color, which broke records for numbers and percentages over a president’s initial term. Biden concomitantly appointed 61 Black judges, about one-fourth to the appellate courts, which contrasts with Trump’s failure to muster even one Black circuit aspirant. Biden seated more lesbian, gay, bisexual, transgender and queer jurists in three years than President Barack Obama could appoint over eight. Biden is on track to nominate more district and lower federal court judges than his predecessor and could eclipse the number of appellate jurists Trump got confirmed.
Although Biden and the tiny Democratic Senate majority attained numerous measures of success, critical work remains. Illustrative are districts’ 61 empty posts; 41 lack nominees. Ten of these openings arise in states two Democrats effectively represent; 27 emanate from jurisdictions a pair of Republicans represent. In contrast, appellate tribunals confront one present “blue state” vacant position that has a nominee, and those courts address only six future empty posts. Biden has nominated and the Senate has confirmed one justice and 42 court of appeals, 156 district court and two Court of International Trade judges.
Thus, most vacancies can be attributed to GOP recalcitrance. These openings inflict certain problems. The many vacancies impose pressure on federal jurists, court personnel and litigants, particularly those who file civil suits. The Speedy Trial Act grants criminal prosecutions precedence, and the Constitution and the Federal Rules of Criminal Procedure accord defendants numerous protections. The existence of many red state district openings without nominees correspondingly has detrimental impacts, which hamper courts’ satisfaction of their duty to promptly, inexpensively and fairly resolve disputes.
When viewing the debate, voters should remember that Biden solicitously cooperated with the Senate to appoint 200 very experienced, diverse judges who have improved case disposition around the country. Biden dutifully honored a pledge to voters that he would name and confirm highly qualified, mainstream jurists who could counter the detrimental impacts of many extremely conservative Trump appointees.
Carl Tobias is the Williams Chair in Law at the University of Richmond.
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