What will historians say Joe Biden and Donald Trump had in common? Their greatest presidential legacy might end up being how they shaped the federal judiciary.
Despite failures on other fronts, Trump appointed more than 200 judges, including three Supreme Court justices — who might soon vote to overrule Roe vs. Wade, a longstanding goal of the conservative legal movement. With a Trump-like approval rating of 42%, President Biden finds himself in choppy waters. But Saturday, Biden witnessed confirmation of his 40th federal judge — the highest number in a first year since President Reagan.
And it’s not just numbers. Biden and the officials in his administration who pick judges, including White House counsel Dana Remus and Chief of Staff Ron Klain, are being smart and strategic. Instead of following the Obama administration’s approach, which didn’t win many confirmations, the Biden administration is taking a page from the Trump playbook by moving forward aggressively on nominations — and using the process to advance political and policy interests.
First, Biden is prioritizing diversity: Around 80% of Biden’s confirmed nominees so far have been women, and 65% have been people of color. Diversity strengthens the judiciary because diverse perspectives enhance decision making. Diverse appointees also help Biden and the Democratic Party, boosting support and enthusiasm among two key constituencies: women and minorities (some of whom have shifted rightward recently).
There’s still room for more progress. The Mexican American Legal Defense and Educational Fund noted last week that Biden’s six nominees this year to the Central District of California have included only one Latino, for a district whose population is now 46% Latino and is projected to be more so during the decades-long tenures of 2021 nominees. LGBTQ representation also lags behind in California. But when it comes to diverse judicial nominees, Biden is still far ahead of Trump, whose appointees were overwhelmingly white and male (84% white, 76% male).
Second, just as Trump chose extremely conservative nominees, Biden is selecting extremely liberal nominees. Lacking an organization as influential as the Federalist Society to verify ideological bona fides, his administration has shrewdly found professional proxies for progressive politics, turning to fields whose practitioners tend to be very liberal: public defenders, public-interest lawyers and attorneys representing labor unions. It’s too early to say anything definitive, but I predict Biden’s judges will be the most liberal since President Carter’s.
Finally, and strategically, Biden is emphasizing youth. As George Washington University law professor John P. Collins Jr. writes in a paper analyzing Biden’s nominees, “President Biden’s first-year circuit judge appointees suggest that Democrats are finally taking age as seriously as Republicans…. At [around 48] years old, the average age of his first-year appointees is eight years younger than the circuit judges confirmed in President Obama’s first year.” This relative youth matters because, thanks to life tenure, young judges serve for longer — so even seemingly small differences in age can result in big differences in legal influence over time.
So the Biden administration’s selection of young, liberal judges is good for the administration and the Democratic Party. Is it good for the judiciary?
There is — or should be — a difference between law and politics. The law should not be, to paraphrase Carl von Clausewitz’s comment about war, the continuation of politics by other means. Instead, judges should try their best to apply the law to the facts of the cases before them, as objectively as possible. A judge’s goal should be to dispense justice under the law, not to advance an ideological agenda. Unfortunately, judges on both the right and left have too often treated the law as a vehicle for partisan politics. The judge-picking process might bear some of the blame.
It might be better for the judiciary for Biden — and all presidents, for that matter — to focus relatively little on youth and ideology.
This was essentially the Obama administration’s approach, partly because it was Obama’s own centrist inclination, and partly because, back when the filibuster was in effect, confirming judges who were too far from the center was impossible.
To prevent further politicization (if that’s even possible), we might want to consider structural changes to the nomination process for future administrations.
First, we could bring back the filibuster for judicial nominees, eliminated for lower-court judges in 2013 (when Democrats controlled the Senate) and Supreme Court justices in 2017 (when Republicans controlled the Senate). When the filibuster was in effect, judicial nominees effectively needed 60 votes for confirmation. This ensured that any successful nominee would have at least some votes from the other party, making it difficult to appoint extreme or unqualified judges. (Of course, bringing back the filibuster would also require a return to senators voting for judicial nominees of the other party as long as they’re qualified, ideological disagreements notwithstanding — which is, admittedly, a far cry from today’s party-line votes on clearly qualified candidates.)
Second, we could consider for lower-court judges something currently being discussed extensively for Supreme Court justices: term limits. If judges served for, say, 18 years rather than life, the parties would face less pressure to put forward the youngest and most ideological nominees, as the current system incentivizes. But realistically speaking, nothing will happen any time soon to change the selection strategies.
President Biden, I have a perfect pick for you: my 4-year-old. He’s young, smart, diverse — and very, very opinionated.
David Lat is the author of Original Jurisdiction, a newsletter about law and the legal profession.