Michael Huber 
CNN
—
President Joe Biden is well positioned to finish his presidency having placed more judges on the federal bench than former President Donald Trump.
But the Democrat will not be able to replicate Trump’s transformation of the appellate courts that hand down the most influential rulings. Trump, the Republican presidential nominee again this year, was especially successful in flipping seats previously occupied by liberal or moderate judges on appellate courts and the US Supreme Court to those held by hardline conservatives.
That’s made the federal judiciary friendly legal territory to conservative litigants who have secured court orders applying to large swaths of the country – and even nationwide – that block Biden policies on student loan forgiveness, LGBTQ rights, the environment and health care.
When Trump entered the White House there were 17 appeals court vacancies, as well as an unfilled Supreme Court seat, while only two circuit seats were open when Biden became president.
“The vacancies Trump did have to fill were, overall, much more significant,” said Carrie Severino, the president of the JCN, which supports the efforts to confirm conservative judges.
Trump was able to “flip” three circuits – from majority Democratic appointee to majority Republican appointee among the appeal courts’ active-status judges – including the 11th Circuit, covering Florida, Georgia, and Alabama, which has issued pivotal rulings curtailing voting rights for ex-felons in Florida and upholding state restrictions on gender-affirming care. Biden has flipped one of those three circuits – the 2nd Circuit – back, and now a narrow majority of all US circuit courts will have more Democratic-appointed active-status judges than Republican-appointees.
The imprint Biden will leave on US district courts, where he is likely to surpass Trump’s numbers, will be consequential for the litigants who have cases in those courthouses – the vast majority of which will never be appealed. But federal appeals courts are usually the last word on the cases that are appealed, with the Supreme Court taking up a minuscule portion of the cases that are kicked up to the justices. Circuit courts also set the precedents that all lower courts in their regions must follow.
“The courts of appeals make law and the district courts don’t – their decisions are binding on no one,” said Russell Wheeler, a non-resident fellow in the Brookings Institution’s Governance Studies program, who studies federal judicial selection.
Because Biden and Trump have been so focused on filling circuit courts, every future vacancy will matter for whomever wins the next election, as will control of the Senate.
“No matter who’s elected, it seems to me, will focus like a laser – continuing to do that – for the appeals court,” said Carl Tobias, a professor at the University of Richmond School of Law. “There’ll be plenty of district vacancies to fill. It’s just that … They can’t bind anybody – even in their own courthouse, as opposed to the more policy making that goes on appellate level.”
Many of the circumstances that facilitated Trump’s overhaul of the judiciary was the product of the maneuverings of Senate Republicans, led by then-Majority Leader Mitch McConnell.
Republicans blocked several of President Barack Obama’s nominees and GOP control of the Senate during the final two years of the Obama administration – coupled with a Senate rule known as “blue slip” – kept seats open for Trump to ultimately fill.
Then there was the boldest Senate Republican maneuver of all: the GOP’s 11-month blockade of Obama’s Supreme Court nominee, then-Circuit Judge Merrick Garland, who would have replaced the late Justice Antonin Scalia and shifted the high court to the left. Filling that vacancy, as well as openings created by the retirement of the relatively moderate Justice Anthony Kennedy and the 2020 death of liberal Justice Ruth Bader Ginsburg, allowed Trump not only to cement Republicans’ dominance on the Supreme Court but expand it.
When cases reach the Supreme Court, they have often been shaped by the circuit judges Trump put on the appellate bench. They include 5th Circuit Judge James Ho, a former Texas solicitor general who has written strident opinions on abortion and other culture war issues, and DC Circuit Judge Gregory Katsas, a former lawyer in the Trump White House who has written influential opinions, including a dissent in a Capitol riot case that previewed an ultimate Supreme Court ruling scaling back those prosecutions. They also include 9th Circuit Judge Lawrence VanDyke, one of 10 Trump appointees that have made that appeals court less reliably liberal, with VanDyke casting key votes in rulings favoring conservative causes and taking swings at his colleagues when dissenting.
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While Biden did not have all the advantages that Trump had, he and congressional Democrats operated an incredible well-coordinated confirmation machine.
“On the total level, it seems that Biden will be able to eclipse Trump – not by a whole lot, but by a fair number,” Tobias said. “But the district [court judges] will carry that.”
Given that for half of Biden’s presidency, Democrats had narrower margins in the Senate than Republicans ever had under Trump, Biden’s record is notable, and he can match Trump’s total number even if a few nominees don’t make it over the finish line by the end of his term.
“Exceeding the previous administration’s four-year totals is certainly within reach, despite significant structural impediments, including the longest 50-50 Senate in history and a fraction of the vacancies inherited by the previous administration,” said Phil Brest, special assistant to the president and senior counsel, in a statement to CNN.
“The Biden-Harris administration understands the vital role that judges play in protecting the freedoms of all Americans and will continue to work to fill every possible vacancy,” Brest added.
Democrats have touted the diversity they’ve injected into the judiciary – both in the traditional terms of gender, race and ethnicity, and in the form of so-called “professional diversity,” with an emphasis on increasing the number of former public defenders, civil rights lawyers and public interest attorneys on the federal bench.
The approach has included putting more women of color to the bench under Biden than under any other president and more Black women to circuit court judgeships than all other presidents combined, according to a spokesperson for a senior Democratic member. More former public defenders have been confirmed to circuit courts in the past four years than under any other president.
Circuit Judge Nancy Abudu, a Biden appointee and former voting rights attorney, became the first Black woman on the 11th Circuit when she was confirmed. Biden appointed Julie Rikelman, who argued in favor of abortion rights in the 2022 case that led the Supreme Court to overturn Roe v. Wade, to the 1st US Circuit Court of Appeals. He notably was able to fill a 7th Circuit seat vacated by a Republican appointee with the confirmation of Candace Jackson-Akiwumi, a former public defender.
“The point was, I think, to counter Trump’s 54, quantitatively, but also qualitatively,” Tobias said. “That will be quite a legacy for Biden – really just obliterating all the prior records for those dimensions of diversity.”
Circuit courts stacked with Biden and Trump nominees after Senate rule changes
The dynamics around the Senate “blue slip” highlight how focused both parties are on circuit courts.
Blue slips essentially give home state senators veto power over a judicial nominee, by requiring that those senators turn in a literal blue slip of paper before those nominees advance through the Senate. After Democrats honored blue slips during the Obama administration, then-Senate Judiciary Chair Chuck Grassley, a Republican, created a “circuit exemption” to the blue slip rule in 2017 – a move that was a boon to Trump. He was able to confirm 17 judges over the objection of at least one of their home state senators, according to the Congressional Research Service and with Democrats refusing to bring back the blue slip requirement for appellate judges, three Biden appellate appointees were confirmed with the opposition of at least one home state senator.
That maneuver helped Trump have a major impact on traditionally liberal-leaning circuit courts, with him flipping some of those circuit courts outright and bringing the party-appointee split closer in others.
“Both Democrats and Republicans appreciate that, more important than the greater number of district judges, is the impact that the appeals courts can have,” Tobias said.
Overall, according to data collected by Wheeler, 35% of Trump’s circuit appointees replaced a judge who had been appointed by the opposing party, while just 19% of Biden’s appellate appointees filled a seat that had been occupied by a Republican appointee.
“The 9th Circuit looks very different today,” said Severino, referring to the 10 judges Trump put on the sprawling circuit, which oversees appeals coming up from nine states in the western part of the country. Six of them were confirmed over the objection at least one of the home state senators.
The number of semi-retired judges that stick around in so-called senior status also affects the dynamic in circuit courts.
Senior judges do not participate in the proceedings known as “en banc” rehearings, in which a circuit court’s full slate of active judges reviews rulings handed down by a three-judge panel on the circuit. But senior judges can sit on the three-judge circuit panels that are a case’s first stop in the appellate level, and usually are the final word on a legal question within a circuit’s region, given how rare it is for cases to be heard en banc or taken up by the US Supreme Court.
