by Jorge Gomez • 8 min read
The U.S. Senate continues confirming federal judges at a record pace. A total of 84 judicial nominees have been confirmed since President Biden took office.
After coming back from its August recess, the Senate confirmed seven appellate court nominees. This means there are now 25 Biden judges confirmed to the federal appeals courts, just one level below the Supreme Court and the place where most major cases are ultimately decided. However, most of Biden’s nominees—close to 60—have been confirmed to the lower district courts.
More Biden judges could be on the way. Approximately two dozen nominees are waiting for a Senate floor vote, including six who would take a seat on the appellate courts if confirmed.
The White House has repeatedly touted a “historic” pace of judicial confirmations. Yes, Biden is outpacing President Trump by double digits so far. 68 federal judges had been confirmed by this point in Trump’s presidency. But Biden’s impact on the judiciary must not be overstated. Even with as many confirmations as there have been so far, Biden’s judges comprise less than 10% of the federal bench. By comparison, Trump judges make up approximately 30%.
Nonetheless, Biden has brought about some change, particularly in the balance of conservative and liberal judges in appellate courts.
Flips in the Federal Appellate Courts
Biden flipped the U.S. Court of Appeals for the 2nd Circuit to a liberal majority, comprised currently of seven liberal and six conservative judges. It’s important to note that during his administration, Trump had flipped the 2nd Circuit to a majority of conservative appointees. Biden has appointed five judges to this 13-member court, which reversed the change the former president brought.
Biden could potentially push the 4th Circuit further in a liberal direction. That 15-member court currently consists of seven liberal and six conservative judges. There are two vacancies and one pending Biden nominee for one of those slots. If the president’s puts judges to fill both seats, that court would then consist of a 9-to-6 liberal majority.
Similarly, the 3rd Circuit is a 14-member court that currently has six liberal and seven conservative judges. There’s one vacancy and one Biden nominee pending confirmation, which means the 3rd Circuit could soon be evenly split (7-7). That razor-thin difference means there’s a possibility a flip could happen.
Although Biden has changed the balance of some appeals courts, we must keep in mind the big picture. NPR reported that conservative judges still comprise 53% of all federal appellate judges, while liberals comprise 47%.
The margins are narrow, but two appellate courts (or possibly three) with even slight liberal majorities is significant—and possibly concerning—especially for religious freedom cases. Appellate courts typically handle 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.
120 Biden Nominees by End of the Year?
Judicial confirmations appear to be at the top of the Senate’s to-do list leading up to the midterm election. And the party in power shows no sign of slowing down.
NBC News reports that Senate Judiciary Committee Chair Dick Durbin “plans to advance more than 20 additional nominees this year.” Sen. Durbin said in an interview: “I’m hoping we can do all those, plus more…I think this is going to be a remarkable achievement if we do.” If that happens, it would mean a total of 100 (or more) Biden judges on the federal bench in the coming months.
Chicago Business reports that Sen. Durbin’s “goal is to confirm a two-year total of 120 judges before the new Senate takes office.” There are now more than 50 Biden nominees in the pipeline who are either waiting for a floor vote, a committee vote or a committee hearing. If every single one of those is confirmed, it would put President Biden’s total appointments far above 120, potentially closer to 140.
Will there be 100 or more Biden judges on the bench by January 2023? It’s possible. But there could be pushback from the minority party, as there is deep concern about the record and ideology of many of Biden’s judicial nominees.
What’s alarming isn’t just the number of Biden’s judges, but the fact that many of them hold positions far outside the mainstream. While in private practice, many of Biden’s judges, who are now on the federal bench for life, have fought against Americans’ core freedoms, including religious liberty.
Including Supreme Court Justice Jackson and many lower court picks, many of Biden’s nominees have either worked for or been endorsed by the most radical, Left-wing activist organizations in the country, including the American Civil Liberties Union and the discredited Southern Poverty Law Center. Their previous legal advocacy for and current support from extreme groups suggests they could unconstitutionally advance a liberal policy agenda from the federal bench. Two examples include:
Federal judges make critical legal decisions about your religious freedom and First Liberty will continue to monitor judicial nominees. As the Senate ramps up confirmations and hearings in the next several weeks, our team of experts will continue to provide you with the facts if any of them have a radical or unacceptable record.