President Joe Biden has two seats to fill on the influential appeals court in the nation’s capital that regularly feeds judges to the Supreme Court.
They are among the roughly 10% of federal judgeships that are or will soon be open, giving Biden his first chance to make his mark on the American judiciary.
Barring an improbable expansion of the Supreme Court, Biden won’t be able to do anything about the high court’s entrenched conservative majority any time soon. Justice Clarence Thomas, at 72, is the oldest of the court’s conservatives and the three appointees of former President Donald Trump, ranging in age from 49 to 56, are expected to be on the bench for decades.
Democrats traditionally have not made the judiciary a focus, but that is changing after four years of Trump and the vast changes he made. Biden’s appointments are also the only concrete moves he has right now to affect the judiciary at large, though there is talk about expanding the number of judges on lower courts.
The nearly 90 seats that Biden can fill, which give their occupants life tenure after Senate confirmation, are fewer than former Trump inherited four years ago. That’s because Republicans who controlled the Senate in the final two years of the Obama White House confirmed relatively few judges.
Included in the tally are 10 seats on federal courts of appeals where nearly all appeals, other than the few dozen decided by the Supreme Court each year, come to an end.
One seat is held by Merrick Garland, whose confirmation as attorney general is expected in the coming days. Another longtime judge on the court, David Tatel, has said he is cutting back on his duties, a change that allows Biden to appoint his successor.
Chief Justice John Roberts, Justice Brett Kavanaugh and Thomas were appellate judges at the courthouse at the bottom of Capitol Hill before they joined the high court atop the Hill.
The late Justices Antonin Scalia and Ruth Bader Ginsburg also served on the appeals court, where they first formed their lasting friendship.
Following Scalia’s death just over five years ago. President Barack Obama nominated Garland to the Supreme Court, but Senate Republicans didn’t give him even a hearing, much less a vote.
When Trump took office in January 2017, he had a high court vacancy to fill. Trump ended up making three Supreme Court appointments to go along with 54 appellate court picks and 174 trial judges, aided by then-Senate Majority Leader Mitch McConnell’s determination to, as he put it, “leave no vacancy behind.”
Democrats and their progressive allies say they’ve learned a lesson or two from the Republicans, and intend to make judicial nominations a greater focus than in past Democratic administrations.
“It’s an exceptional situation where you have a president and the people around him people who really see this as a high priority,” said former Sen. Russ Feingold, the Wisconsin Democrat who served with Biden in the Senate for 16 years. Feingold now is president of the American Constitution Society.
“I think President Biden knows that a part of his legacy will be undoing the damage done by Trump to the extent possible,” Feingold said.
So far, the judges who have announced they are retiring or taking senior status, the term for a reduced workload, have mainly been appointees of Democratic presidents. Some appear to have put off retirement until Trump left the White House.
An additional four dozen or so are eligible to take senior status or will be before Biden’s term ends in 2025. Such judges must be at least 65 years old and with 15 years of service on the bench.