Biden Leaves Office With A Mixed Legacy For The Federal Courts
The Biden administration enhanced diversity on the bench, but couldn’t move the Supreme Court or lower courts to the left in a major way.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.
As of December 17, the Senate had confirmed 233 Article III judges nominated by President Joe Biden. With two more expected shortly, this will secure him 235 judicial appointments—one more than the 234 confirmations during President-elect Donald Trump’s first term.
But it would be incorrect to assume that the two presidents exerted equal influence over the federal judiciary because they appointed roughly equal numbers of judges. Evaluating Biden’s impact on the courts as his presidency concludes requires going beyond the numbers.
In the end, Biden leaves office with a mixed judicial legacy. Let’s consider three factors: diversity, ideology, and influence.
Diversity
Biden did more to advance diversity on the federal bench than any president in history. On the whole, roughly 60 percent of Biden’s 233 appointees are people of color and 60 percent are women. In fact, Biden nominated the most women, people of color, and LGBTQ individuals of any U.S. president.
Most prominently, delivering on a 2020 campaign promise, he appointed the first Black woman to the U.S. Supreme Court: Justice Ketanji Brown Jackson. One step below the Supreme Court, Biden appointed 15 Black circuit judges—one-third of his total of 45—and 13 of them were Black women. If Magistrate Judge Benjamin Cheeks (S.D. Cal.) is confirmed as expected, Biden will have appointed 63 Black federal judges—the most of a presidency of any length.
If Judge Serena Murillo is confirmed to the Central District of California, also as expected, she will be the 150th woman and 24th Latina judge confirmed under Biden. And as of May, Biden had appointed 36 Asian American, Native Hawaiian, and Pacific Islander judges—more than double the number of AANHPI confirmations during any previous single presidential term.
But Biden went beyond demographic diversity to add diversity of professional background as well. Moving beyond the typical picks of prosecutors and Biglaw partners, Biden appointed public defenders, civil-rights attorneys, and labor lawyers to the bench.
Of Biden’s first 205 appointees, 20 percent had experience as public defenders. Compare that to the 1 percent of circuit judges who spent most of their careers as public defenders or within a legal-aid setting, according to a study undertaken by the Center for American Progress in 2020, the year before Biden took office. (Yes, the rate at which Biden appointed lawyers with progressive career backgrounds slowed over time—but that probably resulted from the fact that the administration started its judicial appointments with the low-hanging fruit of districts in states with two Democratic senators, where progressive picks could be more easily confirmed.)
Ideology
The difference between law and politics is both real and significant. At the same time, from the perspective of a president rather than a judge, success in judicial appointments can be measured partly by how much a president moved the judiciary in their preferred policy direction, whether to the left or right.
On this front, Biden fared less well. Starting with the Supreme Court, his appointment of Justice Jackson to replace Justice Stephen Breyer didn’t change the ideological balance of the high court. Compare that to Trump’s highly consequential replacement of the late Justice Ruth Bader Ginsburg by Justice Amy Coney Barrett. That shifted the Court from a 5-4 to 6-3 balance in favor of conservatives, creating a supermajority that overruled Roe v. Wade.
Let’s now turn to the circuit courts—which are important because they resolve almost all cases that get appealed, given how few cases the Supreme Court agrees to hear. Observers of the judiciary often speak of “flipping” a circuit—changing its composition from a majority of Republican appointees to a majority of Democratic ones, or vice versa.
Trump successfully flipped three federal appeals courts: the Philadelphia-based Third Circuit, the Atlanta-based Eleventh Circuit, and the New York-based Second Circuit. He also appointed 10 judges to the Ninth Circuit, the largest federal appellate court, which brought that famously liberal court to near ideological parity. In contrast, Biden managed to flip only one circuit, bringing the Second Circuit back to a majority of Democratic appointees.
Influence
How did Biden fare in terms of appointing highly influential judges to the federal bench? Have his picks been intellectual leaders of the judiciary, issuing opinions that reshape the law, change the way we think about legal issues, or even just generate buzz?
This is admittedly a more subjective factor than the first two. And my subjective, personal answer would be no.
Let’s put aside Justice Jackson, who has carved out a distinctive approach that could be described as “progressive originalism”—and who always was destined to garner attention by virtue of sitting on the Supreme Court. Looking at the lower courts, one is hard-pressed to identify Biden appointees who have made names for themselves as bold thinkers or compelling writers.
The strongest candidate might be Fourth Circuit Judge Toby Heytens. A former clerk to Justice Ginsburg and professor at the University of Virginia School of Law, he has written progressive opinions tackling controversial issues such as race-conscious admissions and transgender athletes in girls’ sports.
But he’s far outnumbered by Trump appointees who drive debate and garner headlines, including four strong Supreme Court contenders—Fifth Circuit Judges James Ho and Andrew Oldham, Sixth Circuit Judge Amul Thapar, Ninth Circuit Judge Patrick Bumatay—and acclaimed writers such as Third Circuit Judge Stephanos Bibas and Eleventh Circuit Judge Kevin Newsom.
Contrast the dearth of Biden appointees in the ranks of federal judicial thought leaders with the ubiquity of Trump appointees. Two law professors, Stephen Choi of New York University and Mitu Gulati of the University of Virginia, studied federal appellate judges based on productivity, influence, and independence. As they told me in an interview, “Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.”
This is especially true when factoring influence based on citations to a judge’s opinions. Nine out of the top 10 most-influential judges in the study were Trump appointees (and the one Democratic appointee in the top 10 was Third Circuit Judge Cheryl Krause, an Obama appointee).
Yes, it’s true that the Biden-appointed judges have been on the bench for less time than the Trump-appointed judges. But Choi and Gulati wrote that “none of the Biden appointees, even when we try to control for their lower amount of time on the bench, make it to the top tiers in our rankings.”
And yes, one could argue that some Trump-appointed judges might be “influential,” in terms of garnering media coverage, because they are engaged in conservative judicial activism. But I have a few responses.
First, Professors Choi and Gulati ranked judges by independence—and found that many Trump appointees, including several who are in the news a fair amount, scored highly on this metric. Second, a number of judges who are highly influential also enjoy reputations as nonpartisan jurists who call cases as they see them, including the aforementioned Judges Bibas and Newsom—who have reportedly disappointed some in Trumpworld, possibly removing themselves from SCOTUS contention, by virtue of their independence.
Blame Biden?
How much should Biden be faulted for this? Reasonable minds can disagree. Some factors beyond his control definitely affected his ability to shape the bench.
Most importantly, Biden inherited only 46 judicial vacancies at the start of his term, while Trump inherited more than 100. What explains the difference? As noted by Caroline Frederickson, former president of the progressive American Constitution Society, Republicans blocked many nominations during President Obama’s last two years in office—most prominently, then-Chief Judge Merrick Garland’s nomination to the Supreme Court—and many of those seats were ultimately filled by Trump. (He won’t be so lucky in his second term: as of October, before the confirmation of even more Biden nominees during the current lame-duck session of the Senate, Trump was on track to inherit the fewest judicial vacancies in generations, per NBC News.)
The Biden administration is more open to criticism in terms of why its judges haven’t been more influential (at least so far). And what might explain that? Here’s one theory, from Choi and Gulati:
[We might be seeing] a different emphasis in the type of judges the Democrats and Republicans sought out. The Democratic judge pickers for Biden emphasized a focus on public defenders, civil-rights lawyers, and diversity. There was perhaps not a strong focus on judicial philosophy, as perhaps there was with the Republican choices. Maybe that is what we are seeing in the data. Those judges who come in with a clear ideology and agenda will be more influential.
As I said on a recent panel about judicial selection in the second Trump administration, I agree with this thesis.
To be sure, as acknowledged by Choi and Gulati, it might be too early to assess the full influence of Biden’s picks. But my prediction is that when we look back years from now, we won’t see as many liberal lions and lionesses among the Biden appointees as we saw from those of President Carter (who named—on the Ninth Circuit alone—preeminent progressives like the late Judges Stephen Reinhardt, Harry Pregerson, and Betty Fletcher).
To sum up, numerous observers have argued that Trump’s most notable accomplishment or enduring achievement from his first term was his transformation of the courts, including but not limited to the Supreme Court. I doubt the same will be said about Biden.
Biden certainly succeeded in changing how the federal judiciary looks, in terms of the faces we see on the bench. To the extent that a more diverse judiciary increases public confidence in the courts, that’s important. But whether he managed to make changes that are more than skin-deep, in terms of appointing judges who will take the courts in a more progressive direction or make significant contributions to developing legal doctrine, remains unclear.
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.
Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts of podcast interviews; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.
Diversity? How about going back to merit?
Surprised by the suggestion that Biden would want his appointees to "garner headlines" in the way that Judge Ho does