WASHINGTON — The Senate is set to confirm the 200th federal judge of President Joe Biden’s tenure on Wednesday, about a month earlier than then-President Donald Trump hit that mark, though Trump still holds the edge when it comes to the most impactful confirmations — those to the U.S. Supreme Court and the country’s 13 appellate courts.
The march to 200 will culminate with the confirmation of Angela Martinez to serve as a federal district judge in Arizona. The milestone reflects the importance that Biden, a former chairman of the Senate Judiciary Committee, and Senate Majority Leader Chuck Schumer placed on judicial confirmations after Trump put his enormous stamp on the federal judiciary with the confirmation of three Supreme Court justices.
“It’s a figure — 200 — that we can all be proud of and shows how intensely focused we are on filling the bench with jurists that will make our democracy stronger and uphold the rule of law,” Schumer said.
The current pace of judicial confirmations for this White House came despite Biden coming into office in 2021 with far fewer vacancies, particularly in the influential appellate courts, than Trump did in 2017.
It’s unclear whether Biden can eclipse his predecessor’s 234 judges before the year ends. Democrats have solidly backed the president’s judicial nominees, but there have been some cracks in that resolve in recent weeks. Sen. Joe Manchin, D-W.Va., said he would not support nominees who don’t have some bipartisan support, and the two Democratic senators from Nevada are opposing a nominee who would become the nation’s first Muslim appellate court judge. They did so after some law enforcement groups came out against the nomination.
The White House is plainly aware of the obstacles ahead of Democrats as they rush to surpass Trump’s record on judges before Biden leaves office. It’s a high water mark that remains a point of pride for the former president and senior Republicans who made it happen, including Senate Minority Leader Mitch McConnell. Filling dozens of judicial vacancies requires time on the Senate floor calendar, which becomes more scarce as senators in the narrowly divided chamber shift into election-year campaign mode.
And of the more than 40 current judicial vacancies nationwide, half are in states with two Republican senators. That matters because for district court judges, home-state senators still can exercise virtual veto power over a White House’s nominations due to a longstanding Senate tradition.
White House officials say they have no illusions about the challenges they face but feel reaching 235 is possible. That doesn’t please Republicans.
“Unfortunately, they learned from our example about prioritizing lifetime appointments,” said Sen. John Cornyn, R-Texas. Meanwhile, liberal advocacy groups are thrilled with the results so far.
“I just cannot rave enough about these judges,” said Jake Faleschini, who leads nominations work at the Alliance for Justice. “It’s been nothing short of transformative of the federal judiciary in terms of both excellence, but also demographic and professional diversity.”
At this stage in his term, Trump had two Supreme Court justices and 51 appellate court judges confirmed to lifetime appointments. Biden has tapped one Supreme Court justice and 42 appellate court judges. Biden has more confirmations of the district judges who handle civil and criminal cases. Those nominations tend to be less hard fought.
Biden has emphasized adding more female and minority judges to the federal bench. On that front, 127 of the 200 judges confirmed to the bench are women. Fifty-eight are Black and 36 are Hispanic, according to Schumer’s office. And 35 judges are Asian American, Native Hawaiian and Pacific Islanders, more than any other administration, according to the White House.
In the appellate courts, 30 of the 42 circuit judges confirmed under Biden are women, according to the White House. Thirteen Black women have been chosen as circuit judges, more than all previous administrations combined.
Under Biden, more Hispanic judges have been confirmed to the appellate courts than any other administration.
As abortion access remains a vital priority for the Biden administration and a key argument for the president’s reelection bid, the White House also points to several judges with backgrounds on the issue. They include now-First Circuit Judge Julie Rikelman, who argued on behalf of the abortion clinic in Dobbs vs Jackson, the 2022 ruling that dismantled Roe vs. Wade; and Nicole Berner, a former attorney at Planned Parenthood who now serves on the 4th U.S. Circuit Court of Appeals.
Conservatives say it’s fine to have diversity, but it shouldn’t be the focus.
“I think the right standard isn’t trying to check boxes with nominees, but to try to find the men and women who are going to be faithful to the Constitution and the rule of law,” said Carrie Severino, president of JCN, a conservative group that worked to boost support for Trump’s nominees.
About a quarter of the judges Trump nominated were women and about one in six were minorities, according to the Pew Research Center.
Asked about the diversity of Biden’s nominees, GOP senators said there was too much focus on identity politics.
“I’m interested in competent lawyers who will administer justice fairly. Now, there are women that can do that. There are men that can do that. There are people of color that can do that,” said Sen. John Kennedy, R-La. “But their primary characteristic that they’re proudest of is racial identify or gender identify, and activist. And I just don’t think that’s what the American people want to see in their justice system.”
Proponents of diversifying the federal judiciary counter that people who come before the court have more trust in the legal process when they see people who look like them. They said it’s important to diversify the professional backgrounds of judges, too, so that more public defenders and those with a civil rights or non-profit background are considered.