How Biden reshaped the judiciary

His appointees were the most diverse ever, but Trump's remain more influential.

January 16, 2025, 4:21 PM
President Joe Biden appointed slightly more federal judges than President-elect Donald Trump did during his first term.
President Joe Biden appointed slightly more federal judges than President-elect Donald Trump did during his first term.
ABC News Photo Illustration/Getty Images/Anna Moneymaker/Andrew Harnik

Amid the flurry of discontent with much of Joe Biden's presidency (his approval rating recently hit a new low), the outgoing president has managed to score a quiet victory that could leave an impact long after he has left office: appointing lots of judges.

In a feat few thought possible at the beginning of his presidency, Biden has now appointed more judges in one term than any president in at least 50 years. With 235 nominees approved, Biden surpassed President-elect Donald Trump's first term total by one judge, a long-stated goal for Democrats.

Now, at the beginning of Trump's second term, judges appointed by Biden, Trump and former President Barack Obama each make up about 27 percent of all active federal judges. That means across the federal judiciary, 57 percent of active judges were appointed by Democratic presidents, while 43 percent were appointed by Republicans.*

Not all of those positions are equally important, though. Compared to Trump, a larger share of Biden's appointments were to less-powerful posts, like district courts, rather than more powerful appellate or Supreme Court seats. And during his first term, Trump was able to "flip" more of those more-powerful judgeships than Biden did, appointing conservative judges to replace more ideologically liberal ones. While Biden also flipped some seats, most of his appointments were to posts previously held by similarly-minded judges.

Because of all this, topline numbers alone don't give a full picture of how Biden's judicial picks stack up against those of his predecessors, or what their impact on federal jurisprudence may be. To really get a good sense of what Biden's judicial legacy may be, we need to dig a little bit deeper.

Biden's ideological impact on the courts was somewhat muted

Appointing a lot of judges may not mean all that much if the judges you're replacing are almost identical to the new appointees. That was one of the most obvious impacts of Trump's first-term judicial picks; by the time he left office, Republicans had managed to flip the ideological composition of three powerful appellate circuit courts, meaning those courts overall now had more conservative judges than liberal ones.

By contrast, Biden only flipped one appellate court — the 2nd Circuit, based in New York City, which had only recently swung into conservative hands under Trump. Biden did come close in the Chicago-based 7th Circuit, though, flipping three seats to bring the conservative advantage on the court down to just one judge. Ultimately, Biden was able to flip eight circuit court seats across the country, a solid number but markedly less than Trump's first-term total of 14.

PHOTO: Joe Biden appointed fewer circuit court judges, but still flipped eight seats.
Amina Brown for 538

One reason Trump was able to exert more ideological influence over the circuit courts was due to the huge number of vacant seats at the beginning of his term. During the final years of Obama's presidency, the GOP-controlled Senate dragged its feet on confirming many of the Democrat's picks, betting (ultimately successfully) that he would soon be replaced by a Republican in the Oval Office. Conversely, Biden took office with less than half the number of total vacancies as Trump, leaving him fewer opportunities to make big ideological waves.

Biden was, however, able to appoint a huge number of judges to the less powerful but still important district courts. District judges are the first to hear most federal cases, and while most major cases are immediately appealed to higher courts, these judges can still exert substantial influence over the judicial system.

District judges can issue nationwide injunctions (though they are sometimes criticized for doing so), and certain cases (like some related to redistricting) are heard by a hybrid panel made up of both district and circuit judges. Decisions from those panels are appealed directly to the Supreme Court, making them akin to a circuit court in many ways.

While it's true that some district court ideological makeups run opposite to their supervising circuit court ideological composition (such as in the the 3rd, 7th, 8th and 10th Circuits), this is usually much less important in the grand scheme of things, since most major decisions are immediately appealed anyway. Regardless, Biden's impact on the ideology of the district courts shouldn't be discarded out of hand.

Biden's nominees were historically diverse

But ideological composition isn't the only way a president can exert influence over the courts. Biden's picks were historic not just for their number, but for the wealth of diversity in their ranks. Across his appointments, Biden's picks massively increased the racial, gender, professional and religious diversity of the federal courts.

Sixty-three percent of Biden's judicial appointments were women, and a similar share were people of color. That includes more Black women named to the circuit courts than every other president combined. In comparison, just 16 percent of Trump's appointments and 36 percent of Obama's were nonwhite, while 24 and 42 percent, respectively, were women.

Biden also appointed the first four Muslims to serve as federal judges, and more than 40 percent of his confirmed nominees were civil rights lawyers or public defenders, including two-thirds of his confirmed circuit court appointments. That's a big departure from past precedent, when the overwhelming majority of judicial picks were from prosecutorial or corporate backgrounds. Research has shown that judges who have backgrounds as public defenders tend to hand down less punitive sentences and incarcerate fewer people, a fact that criminal justice reform advocates have been stressing in their praise of Biden's judicial picks.

All of these numbers far outpace those of Biden's predecessors, leaving a high-water mark that future presidents may be inclined to chase. Though the federal bench is still overwhelmingly white and male, Biden's choices have made big strides toward helping the judiciary look more like the nation as a whole.

Political polarization on the courts is likely to stick around

Beyond ideology and diversity of background, it's tough to say how big of a role all these new Biden judges will play in the upcoming Trump administration. Trump's impact on the judiciary was felt immediately after he left office — less than a week after Biden was sworn in, a Trump-appointed judge issued a nationwide injunction to block one of the new administration's policies. That was just a foreshadowing of what was to come — through April of last year, every single nationwide injunction against Biden came from a Republican-appointed judge, the first time since at least 2001 that every nationwide injunction against a president had been issued by judges appointed by the opposing party. Conservative judges were able to thwart, delay and weaken many of Biden's signature initiatives through the normal court process as well.

Biden-appointed judges, too, will certainly play a role in any pushback against Trump's second-term agenda. The president-elect's first term was pockmarked with judicial roadblocks and the next four years will likely see more of the same. But it's an open question whether Democratic-appointed judges will block his agenda as aggressively as they did eight years ago. Since more of Biden's judges sit in less-influential roles, they won't have the final say on as many appeals. That will rest instead with the Supreme Court, where, after appointing three justices in his first term and solidifying a 6-3 conservative majority, Trump is likely to find even friendlier faces.

All of this gets at a more fundamental trend we've observed over the last few decades — the ever-deepening political polarization of the federal judiciary. While there are many factors that go into judicial appointments (like professional and racial diversity), ideology is always the most important. And as parties increasingly compete across presidencies to get advantages on the courts, public trust in the decisions that come out of those courts has already begun to suffer dramatically. Given the trends we've observed over the last decade or two, that's not likely to reverse anytime soon.

Footnotes

*In this article, federal judges refer to those who fall under Article III of the U.S. Constitution who are appointed by the president and confirmed by the Senate for lifetime positions. These counts do not include judges who have assumed senior status; these judges can and do still hear cases, but they have a reduced workload and are not counted in most analyses of the federal judiciary.

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