President Joe Biden celebrated his 150th federal judicial confirmation this week and touted his achievement of making two-thirds of his nominees women, though more vacancies on the bench are needed to match his predecessor's pace.
“All of these men and women are highly qualified, faithful to the rule of law, and dedicated to the Constitution,” the White House said in a statement after the Senate Judiciary Committee confirmed two of his nominees Tuesday. The committee will also have a chance to confirm two more during a Thursday hearing.
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Trump appointed 234 federal judges and had 187 confirmed by the Senate by the end of his third year in office, according to the American Constitution Society. To catch up to his predecessor, who had confirmed dozens more judicial appointments by the end of his third year in office, the Biden administration and the Democratic-led committee need to be "in sync," according to University of Richmond law professor Carl Tobias.
Senate Judiciary Committee Chairman Dick Durbin (D-IL) "promised" to have meetings every two weeks, Tobias said, adding that part of the problem is "there are not that many who haven't had a hearing yet."
The Senate Judiciary Committee will vote Thursday on two other female nominees, Mustafa Taher Kasubhai for the U.S. District Court for the District of Oregon and Eumi K. Lee for the U.S. District Court for the Northern District of California.
If confirmed, Kasubhai and Lee will raise the number of female judges appointed since Biden took office to 102, the most women during any presidency in history. The White House has also celebrated that nearly two-thirds of Biden's confirmations are people of color.
Tobias contended that Biden "is a little behind Trump on appellate confirmations," noting the president's focus should be on making new nominations to the federal circuit courts if he wants to compete with Trump's judicial legacy in one of the most important categories of Article III courts.
Biden has so far confirmed 36 appellate judges, with five awaiting confirmation votes. Trump confirmed 54 by the end of his four-year term.
While any appointment to a federal court is a valuable gain for Biden, appellate courts are especially important for a president’s ability to shape and influence the judiciary. Not only do they serve as a bridge between federal district courts and the Supreme Court, but there are far fewer appellate judgeships than there are for district courts, making vacancies rarer.
The challenge going forward for Biden's judicial milestones will be the sheer lack of vacancies on the appellate courts. There are only eight seats currently vacant.
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Another hurdle will be getting nominations in vacant circuit court seats in jurisdictions that have Republican senators because a rule known as the “blue slip” tradition normally requires the president to consult with home-state senators before making a selection.
The liberal-leaning ACS has called on Durbin to lift the blue slip tradition in response to Biden lagging behind in his appellate confirmations, saying it would "simply prevent a single senator from hijacking a vacancy."