by First Liberty Institute • 6 min read
In the biggest wave of judicial confirmations so far, the U.S. Senate recently confirmed nine (9) nominees to the federal courts. This brings the total number of judges appointed during the Biden administration to twenty-eight (28), which means the President continues outpacing his predecessors by sizeable margins.
Here’s a quick look at judicial confirmations at this point in a President’s first year, dating back to the Reagan administration:
President Biden is having a relative measure of success up to this point in his presidency, with some judicial analysts calling his confirmations “historic.” But, in the bigger context, these early gains really haven’t dramatically changed or transformed the federal judiciary—not yet, at least.
To date, conservative-appointed judges—more than 400—still constitute a majority on the federal courts, compared to approximately 370 liberal-appointed judges.
But is a “flip” from a conservative majority to a liberal one on the horizon?
One thing is clear: Biden’s confirmations are narrowing the gap.
There’s a difference of about thirty (30) judicial seats that could turn the federal courts from majority conservative to majority liberal. Biden has approximately eighty (80) vacancies to fill, and close to thirty (30) nominees already waiting in the Senate’s pipeline for confirmation.
It appears that his speedy approach could yield another dozen judges getting through to confirmation. In fact, on Nov. 3, the White House announced its ninth round of judicial nominations, adding another ten judicial candidates into the pipeline.
Americans must keep a vigilant eye on judicial appointments because Biden is already “flipping” the composition of appellate courts, and it’s likely the federal judiciary could be flipped to a liberal majority sooner than expected. He may be moving quickly, since the Senate could change hands after the elections in 2022.
Biden Secures Liberal Majorities on Two Appellate Courts
The Senate’s most recent wave included two confirmations for the U.S. Court of Appeals for the Second Circuit, which “flips” this court to a seven (7) judge liberal majority and six (6) conservative judges.
(Recall one important fact: The Second Circuit was previously flipped to a majority of conservative-appointed judges under the Trump administration.)
Additionally, the Senate confirmed one of Biden’s judicial picks for the U.S. Court of Appeals for the Fourth Circuit, tipping the balance of that court in a liberal direction, now comprised of fifteen (15) liberal judges to fourteen (14) conservatives.
The margins are thin, but two appellate courts with even slight liberal majorities is significant—and possibly concerning—especially for religious freedom cases. Appellate courts typically hear and rule on cases in three-judge panels, so the ratio of liberal to conservative judges plays a big role in whether a panel includes at least one (or more) originalist judge committed to the text and original intent of the Constitution.
Even more alarming, several of Biden’s appellate court nominees have not inspired much confidence on religious freedom. For example, First Liberty’s legal experts explained how Beth Robinson—the nominee who tipped the scales to flip the Second Circuit—raises serious red flags regarding her record on religious liberty, given her previous work while in private practice.
Fanning the Flames of a Supreme Court Coup
Biden has made some initial inroads by flipping two of the thirteen appellate courts.
However, there are still many questions surrounding the long-term impact Biden’s judges could have on the composition of the judiciary. He has about forty (40%) less vacancies to fill than did President Trump at this point in his tenure. And even if he filled every vacancy available to him, Biden would still fall more than 100 judges short of the total judges confirmed during the Trump administration.
Americans worried about the composition and the integrity of our courts must not be fooled. President Biden faces intense pressure to pack the U.S. Supreme Court, and the more judges he appoints could embolden the radical Left’s scheme for a Supreme Court Coup.
It wouldn’t be surprising to hear the Left argue: If Biden succeeded at securing a liberal majority on two appellate courts, now it’s time for him to do the same at the highest level and expand the size of the nation’s highest court.
When it comes to grabbing more political power, the Left has constantly shown they will twist any opportunity to rig and stack the Supreme Court with liberal judges. So, instead of quelling the Left, Biden’s judicial confirmation success and the recent appellate court flips could just add more fuel to the court-packing fire.
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