To date, President Joe Biden’s term has been a failure on judicial confirmations. Even with a Democrat Senate majority and significantly easier procedural rules — like no blue slips for circuit court nominees and no 30-hour rule — Biden has been unable to match the impact of Donald Trump’s historic 234 judicial confirmations in a single four-year term.
Earlier this month, Biden further jeopardized his legal legacy by short-circuiting the justice system and pardoning his son, Hunter. At this point, Biden is in desperate need of a boost.
Fortunately, with the stroke of his pen, Biden could improve his milquetoast judicial legacy by signing the bipartisan JUDGES Act into law. As Biden looks to end his term as president on a high note, he should sign this bill as a legacy item to ensure that all Americans have timely access to federal district courts.
Biden’s middling impact on the federal judiciary is well-documented. He failed to change the Supreme Court’s ideological balance in any meaningful way. Trump, in contrast, made it more conservative at the very least by replacing Ruth Bader Ginsburg with Amy Coney Barrett.
Moving down to the U.S. Courts of Appeals, Biden confirmed significantly fewer appellate judges than Trump. With Majority Leader Chuck Schumer’s (D-N.Y.) deal to withdraw Biden’s four pending U.S. Courts of Appeals nominees to advance district court confirmations, Biden will end his term with 45 appellate judges to Trump’s 54. Biden’s lack of impact on the appellate courts is best demonstrated by the fact that he was only able to “flip” the balance of one circuit, whereas Trump flipped three — including one where the most contentious cases are litigated — and brought the 9th Circuit to near ideological parity.
Biden’s dim judicial legacy flickers brightest on the district courts, where he will barely surpass Trump’s confirmation numbers after Schumer’s deal. This might be impressive if the district confirmations Biden received in the deal didn’t require a fraction of the floor time per judge than they would have at the beginning of the Trump administration and didn’t come at the cost of four Biden circuit confirmations.
What Biden failed to accomplish with his judicial confirmations is now water under the bridge. The pending question is what he can accomplish on the federal courts before the 118th Congress ends and he leaves office.
As Schumer stated: “The goal of the JUDGES Act is in the name: it creates 66 new federal district judges in order to relieve our overburdened judiciary.” The last time Congress substantially increased the number of federal judges was 34 years ago when President George H.W. Bush signed the Judicial Improvements Act of 1990.
Since then, the number of filings in district courts has increased by more than 30 percent. As a result, backlogs have increased, and some Americans have had a hard time receiving timely resolutions of their disputes. For instance, in the U.S. District Court for the Eastern District of California, the average time between the filing of a felony case and its resolution is 33 months. This potentially leaves criminal defendants in pretrial detention for up to two years before trial. This is unacceptable.
The JUDGES Act passed unanimously in the Democratic-controlled Senate, it will likely be supported by a bipartisan majority in the Republican-controlled House, and it has been endorsed by the nonpartisan Judicial Conference of the United States, the Administrative Office of U.S. Courts, and over 300 sitting federal judges appointed by presidents from across the ideological spectrum.
One of the bill’s few critics — House Judiciary Ranking Member Jerrold Nadler (D-N.Y.) — has criticized the JUDGES Act because he is “leery” of providing Trump with a few more judicial vacancies. Ironically, Nadler is a co-sponsor of the House version of the bill. Prior to the election, he even praised the legislation and said, “The JUDGES Act…will authorize the new judgeships necessary to allow cases to be adjudicated swiftly, address the backlog, and get our district court system moving again.”
All the benefits that Nadler listed are true, regardless of the outcome of the last election. Further, his concern about giving Trump a few more district court vacancies was already accounted for, because the bills staggers the creation of additional judgeships over the next 12 years and three presidential terms, ensuring that the voters will decide which president fills the majority of these judgeships. If Nadler is so confident in the Democrat Party’s platform, he can rest easy knowing that more judgeships are headed his party’s way just around the corner.
Biden rose from chairman of the Senate Judiciary Committee to become president. Despite significant experience in judicial politics, his judicial confirmation legacy as president is unremarkable. By signing the JUDGES Act into law on his way out the door, Biden would improve his judicial legacy by ensuring that the regular Americans he claimed to care about during his four decades in public office have timely access to the courts. Or he could veto the bill out of spite and blow the final opportunity to redeem his reputation. We will soon know how Biden chooses to be remembered.
Robert Luther III serves as Distinguished Professor of Law at the Antonin Scalia Law School at George Mason University. He served as Associate Counsel to the president under President Trump.