How Biden Is Reshaping The Courts

When former President Donald Trump left office in January, one of the most formidable aspects of his legacy was his imprint on the federal courts. In Trump’s four years in the White House, he appointed three Supreme Court justices, 54 appeals court judges and 174 district court judges, filling the judiciary with a raft of conservatives who were mostly white men. 

Rebalancing the courts was always going to be a challenge for President Biden. When he took over, 30 percent of active federal judges had been appointed by Trump. He also had just 49 federal court vacancies to fill at that point — less than half the number that Trump started with. But Biden campaigned on offsetting Trump’s conservative stamp by nominating judges from diverse backgrounds, and he’s gotten more judicial nominees confirmed through the Senate than any president at this point in his first term in decades. Almost half of the 61 judges he’s nominated to the lower courts have been confirmed — a larger share than Trump or former President Barack Obama — although there’s been far less consensus in the Senate about Biden’s picks. 

But perhaps even more significantly, Biden has delivered on his promise of diversity in a big way. According to our analysis, the vast majority of the judges who have been confirmed under his presidency are women or people of color. And the judges he’s named to the courts also have nontraditional professional backgrounds. They’re more likely than past crops of judges to come from fields like advocacy and academia, and more likely to have worked as public defenders than as prosecutors.

Biden’s appointees aren’t diverse on every metric, though. We found that his judges are more likely to have attended the country’s most prestigious universities and law schools than judges appointed by past presidents. That turn to the elite is especially noteworthy, given that Biden’s ticket was the first Democratic ticket since 1984 to feature two candidates who didn’t graduate from an Ivy League school.

The impact of all of these appointments on the judiciary is also complicated to assess, because most of Biden’s appointees have been named to seats in blue states,¹ and therefore are largely replacing other Democratic appointees. That doesn’t mean they won’t affect the courts, though — having more judges who are women, people of color and former public defenders will likely make a big difference for the outcomes of their cases, particularly in criminal cases and on issues like discrimination and voting rights.

Biden’s judges are breaking records on diversity

When it comes to judicial nominations, Biden and the Senate Democrats aren’t wasting any time. Perhaps spurred on by the very-real possibility that Democrats will lose control of the Senate in 2022, Biden has already nominated 61 judges to the lower courts, and 28 of those judges have been confirmed. According to data compiled by Brookings Institution fellow Russell Wheeler, that’s more nominees at this point in his term than any president since George W. Bush, the highest share of confirmed nominees than any president since Bill Clinton and the most appointments since Ronald Reagan.² 

“​​There were some progressives who were worried during the Trump years that Biden would be sleepy on [judicial appointments], but the Biden administration has made clear that this is a big priority,” said Marin K. Levy, a law professor at Duke University who studies the federal courts. “By and large, they have been moving on judicial nominations at a fast pace.”

Biden’s judges are also far more diverse than any previous president’s appointees. Most (71 percent) of the judges he’s successfully appointed to the federal bench are nonwhite, and the overwhelming majority (75 percent) are also women — far outstripping previous presidents, including his Democratic predecessors, on both metrics.

Biden’s judges also come from different professional backgrounds than previous presidents’ appointees. For instance, about half of Biden’s judges have ever held positions involving public defense or advocacy, and only a quarter have ever worked as prosecutors. As the chart below shows, both Obama and Trump were far likelier to appoint prosecutors and less likely to appoint judges with track records in public defense and advocacy.

These trends also lie squarely in line with promises that Biden made on the campaign trail and during his presidential transition. In response to pressure from progressives intent on court reform, he emphasized his commitment to appointing judges and justices with different kinds of life experiences and backgrounds, in an effort to make the judiciary more reflective of the people who appear every day in judges’ courtrooms. There’s plenty of research showing that having more women and people of color serve as judges can change outcomes in cases on gender discrimination, affirmative action, voting rights and more.

“The spotlight on judicial appointments has only been increasing over time,” said Gbemende Johnson, a political science professor at Hamilton College who studies judicial politics. “So part of what’s happening here is that a lot of people are watching Biden closely, to make sure he’s keeping those promises.”

More judges are coming from elite institutions

Biden’s judges are less diverse than previous presidents’ in one important way, though: They’re more likely to have attended elite educational institutions. According to our analysis, 29 percent of Biden’s appointees have an undergraduate degree from one of the eight Ivy League colleges and universities, and 61 percent went to a top-tier law school.³ 

That’s higher than other presidents’ appointees — as the table below shows, only 11 percent of Trump’s appointees attended an Ivy League school for their undergraduate degree and just over a third (34 percent) got their law degree at a top-ranked school. Obama was more likely to appoint judges with elite credentials than Trump but less likely than Biden has been so far.

This trend is particularly pronounced for judges who have been appointed to serve on the courts of appeals in the past year. Biden hasn’t had very many appellate vacancies to fill, but the judges who have been successfully confirmed are highly credentialed. More than half of his appellate appointees went to an Ivy League school for their undergraduate degree, and 78 percent attended a top-ranked law school.

When we spoke with experts about this trend, they floated a couple possible reasons. Chad Westerland, a political science professor at the University of Arizona who studies judicial politics, pointed out that clerking for a judge is a common stepping stone to becoming a judge. And those clerkships are easier to get when you attend a top-tier law school, which is, in turn, easier to get into if you attend a prestigious undergraduate institution.

Johnson also noted that while a fancy law degree is unlikely to change any senators’ minds about a judicial nominee, strong academic credentials could be seen as a bonus for candidates who have been traditionally underrepresented. “It does give you the opportunity to say, even if there was opposition, ‘Why are you opposing this person? They check every single box,’” she said.

But appointing more and more judges who attended the same handful of educational institutions is not necessarily a good thing, according to Christina Boyd, a political science professor at the University of Georgia who studies the courts. She told us it’s also important to have judges who attended schools that have a regional footprint, because that affects judges’ networks and connections and how they think about the law more broadly. “You could imagine people in those areas, where people don’t typically go to Ivy League schools, saying, ‘This is not representing us, we want judges who are like us,’” she said.

Biden is reshaping the courts in blue states — not red states

Each new judge is an important step in Biden’s quest to make his own mark on the courts, but in some ways, his impact has been fairly limited. Notably, according to Wheeler’s data, nearly all of his nominees so far are from blue states, which makes sense given that he’s mostly replacing judges appointed by other Democratic presidents who are choosing to retire. 

He has flipped a couple of important seats, including replacing a Republican-appointed judge on the right-leaning 7th Circuit Court of Appeals with Candace Jackson-Akiwumi, a Black former federal defender. But for the most part, he’s making areas of the country that were already dominated by liberal judges even more liberal.

Take the 2nd Circuit Court of Appeals, a powerful, traditionally liberal circuit court in the New York area. Thanks to Trump’s appointments, Republican-appointed judges actually had a narrow advantage on the court when Trump left office, but Biden has already been able to appoint three of the 13 active judges on the circuit, shifting the balance of power back toward the liberal judges on the court. The 2nd Circuit now has six judges appointed by a Republican president and seven appointed by a Democrat, which means the chance of drawing a panel with two or three Democratic-appointed judges overseeing a case is higher than it was when Biden took office.

Biden’s task is likely going to be more difficult going forward, though. For one thing, Republican-appointed judges are unlikely to retire voluntarily on Biden’s watch, so there will always be fewer red-state vacancies for him to fill. Several experts also told us that judicial nominations are getting more polarized and contentious. 

Until very recently, it was common for most judges to be confirmed unanimously, often without a formal vote. That’s no longer the case. “I’m confident that Biden will be the first president never to have a unanimously confirmed appointee to a district court or a court of appeals,” Westerland said. He thinks it’s still likely that Biden will be able to get his chosen nominees through, even if they’re from more conservative parts of the country, since Democrats have been voting in lock-step on his judges so far. But Boyd said that Biden might feel pressure to nominate more moderate judges, since Republicans are starting to raise stronger objections to his picks from red states. And that could be challenging, given his other priorities.

For now, though, Biden still has plenty of vacancies to fill, so confirming a raft of diverse, liberal judges is likely to remain a priority for his administration and Democrats in the Senate. With the midterms — and a possible loss of the Senate — looming on the horizon, his main enemy is time. “If Democrats lose the Senate, that’s going to be really tricky for shaping the bench, and that’s probably one of the reasons they’re moving so fast now,” Johnson said.