Joe Biden did something this year that no other president has done.
He put a citizen of the Navajo Nation into a lifetime federal judgeship.
He also put a Bangladeshi American and Muslim woman into a lifetime federal judgeship.
And he put 30 people into lifetime federal judgeships who have strong backgrounds in protecting people’s civil rights, including public defenders and civil rights attorneys.
This is just a sampling of the historic diversity that Biden has been ushering onto the nation’s federal courts. But the looming question for 2024 is, can he keep it going?
After a breakneck pace of confirming judges during his first two years in office, Biden, for the first time, fell behind Donald Trump’s number of confirmations by this point in his presidency, despite Democrats controlling the Senate. And he may be missing out on opportunities to fill slots on crucial appeals courts before the November election.
Jake Faleschini, the director of justice programs at Alliance for Justice, a progressive judicial advocacy group, said that Biden still has nearly 100 court vacancies to fill heading into 2024. It’s possible to fill them all, he said, but Democrats have to make sure at every opportunity that Senate Judiciary Committee hearings are “fully packed” with Biden’s judicial nominees, and that they continue voting to confirm them for the full year.
“If they do that, they’ll finish up stronger than the Trump administration,” he said. “Trump got 234 judges. If Democrats keep going, and at the pace of the last three years, they can outpace that.”
Biden has been laser focused on diversifying the courts since he took office, both in terms of demographics like race and gender but also in terms of professional backgrounds. For as long as the U.S. has had a court system, it has been almost exclusively filled out with white men and corporate lawyers or ex-prosecutors. Biden, a former longtime chair of the Senate Judiciary Committee, has broken from that mold and advocated the idea that federal judges should reflect the diversity of the communities they serve.
Three years into his presidency, Biden, with the help of Senate Democrats, just delivered on some of his most trailblazing judges yet.
Consider this batch of six judges that Biden got confirmed around the start of the summer. All six were civil rights attorneys. All six were priorities for progressive judicial advocacy groups. All six are relatively young, meaning that they likely have decades ahead of them in their lifetime appointments.
These include now-U.S. District Judge Dale Ho, 46, who was a prominent voting rights attorney with the American Civil Liberties Union. They also include now-U.S. Appeals Judge Julie Rikelman, 51, considered one of the best abortion rights attorneys in the country. Rikelman had been the litigation director for the Center for Reproductive Rights since 2011, and famously argued on behalf of an abortion clinic at the center of the 2022 Supreme Court case that led to Roe v. Wade being overturned.
“Biden’s greatest 2023 accomplishments were continuing to nominate and confirm unprecedented numbers of candidates who are diverse in terms of ethnicity, gender, sexual orientation, ideology and experience,” said Carl Tobias, a University of Richmond law professor and an expert in judicial nominations.
Those six confirmations came weeks after the Senate confirmed Nancy Abudu, 49 — another civil rights attorney and the first Black woman to serve on the U.S. Court of Appeals for the 11th Circuit.
“The quality of the nominees in 2023 really stands out,” said Faleschini. “We got so many of these folks through who had been waiting for the first two years of the administration. They finally got through last summer. Just very, very high-quality nominees.”
Faleschini hailed two of Biden’s pending nominees to U.S. appeals courts, too: Nicole Berner, a former Planned Parenthood litigator and longtime union lawyer, and Adeel Mangi, a litigator and partner at Patterson Belknap Webb & Tyler LLP. They would be historic LGBTQ+ and Muslim federal judges, respectively.
Mangi in particular “is just an exceptional candidate,” Faleschini said.
Biden’s work to diversify the courts in 2023 adds to the impact he’s already had on the federal bench. Of the 166 judges that Biden has confirmed since taking office, two-thirds are women, at 108, and two-thirds are people of color, at 110. That alone is an extraordinary feat given, again, how white and male the nation’s courts have always been.
Biden has also already put more women of color onto federal courts than any previous president has in a full term in office, and has put more public defenders onto appeals courts than any past president. And, of course, in what is perhaps his proudest accomplishment in office, he appointed the first Black woman and public defender to the Supreme Court, Justice Ketanji Brown Jackson.
It’s the professional diversity of Biden’s judges that jumps out to Lena Zwarensteyn, a senior director of the fair courts program at The Leadership Conference on Civil and Human Rights.
“This legal experience is underrepresented in our judiciary, and it matters,” said Zwarensteyn. “Judges rule on issues related to health care, voting rights and so much more that impacts our daily lives, so it is especially meaningful to see brilliant civil rights lawyers ascend to the bench directly from our nation’s civil and human rights and public interest organizations.”
The diversity of judges is one thing that shapes a president’s legacy, though, and the sheer quantity of them is another. Biden confirmed a total of 69 federal judges this year, putting him well behind the 102 judges that Trump had confirmed in the third year of his presidency.
That lag is due largely to Biden having a narrow Democratic majority in the Senate and “unprecedented” opposition from Republicans, which left him “little room to spare,” said Russell Wheeler, a visiting fellow with the Brookings Institution’s governance studies program and president of the Governance Institute, a nonpartisan think tank.
Wheeler crunched numbers and found that the median number of “no” votes on Trump’s 82 district court nominees in the third year of his presidency was 19. Meanwhile, the median number of “no” votes on Biden’s 57 district court nominees this year was 44.
Still, Wheeler said he suspected that Biden’s biggest disappointment in 2023 was the failure of retirement-eligible appeals court judges to create vacancies for him to fill, especially those who were appointed by Democratic presidents.
“By my count, there were 16 such retirement-eligible Democratic appointees at the start of the year, and 15 now,” he said. “Barring some major upheaval in 2024, there’s no way Biden can match Trump’s four-year total of 54 court of appeals appointees.”
To date, Biden has confirmed 39 appeals court judges.
Faleschini was hopeful about Biden catching up to Trump’s judicial confirmations in 2024, even though it’s an election year and lawmakers will increasingly turn their focus to their own contests.
“I am slightly disappointed,” he said of Biden’s pace in 2023, “but given the quality of the nominees, it’s forgivable.”
Tobias, too, said he is “cautiously optimistic” that Biden and Senate Democrats will expedite confirmations. He noted that, more recently, Republicans have been working with the White House to agree on filling vacancies in their states. It’s a sign that at least some GOP senators are willing to compromise with Biden on nominating court picks in their states, versus unilaterally blocking all of his picks through an arcane tradition in the Judiciary Committee.
“I found it heartening” that Biden announced five judicial nominees this month from states led by two Republicans, Tobias said. “More packages like this would enable Biden to surpass Trump’s district appointees and perhaps approach his appellate confirmees.”
Marge Baker, an executive vice president of People for the American Way, a progressive advocacy group, said that Biden “deserves congratulations for the stunning diversity of his judicial nominees,” but emphasized that he and Democrats must keep their eye on the ball in 2024.
“We want to see all the vacancies filled,” said Baker. “We need to focus on filling vacancies in Southern and Midwestern states; we need nominees for all these seats and we need Senate prioritization to get nominees on the calendar confirmed ASAP.”