Biden Leaves Office With Mixed Legacy for the Federal Courts (1)

As of Dec. 17, the Senate had confirmed 233 Article III judges nominated by President Joe Biden. With two more expected shortly, this will secure him 235 judicial appointments—one more than the 234 confirmations during President-elect Donald Trump’s first term.

But it would be incorrect to assume that the two presidents exerted equal influence over the federal judiciary because they appointed roughly equal numbers of judges. Evaluating Biden’s impact on the courts as his presidency concludes requires going beyond the numbers.

In the end, Biden leaves office with a mixed judicial legacy. Let’s consider three factors: diversity, ideology, and influence.

Diversity

Biden did more to advance diversity on the federal bench than any president in history. On the whole, roughly 60% of Biden’s 233 appointees are people of color and 60% are women. In fact, Biden nominated the most women, people of color, and LGBTQ individuals of any US president.

Most prominently, delivering on a 2020 campaign promise, he appointed the first Black woman to the US Supreme Court: Justice Ketanji Brown Jackson.

One step below the Supreme Court, Biden appointed 15 Black circuit judges—one-third of his total of 45—and 13 of them were Black women. If Magistrate Judge Benjamin Cheeks (S.D. Cal.) is confirmed as expected, Biden will have appointed 63 Black federal judges—the most of a presidency of any length.

If Judge Serena Murillo is confirmed to the Central District of California, she will be the 150th woman and 24th Latina judge confirmed under Biden. And as of May, Biden had appointed 36 Asian American, Native Hawaiian, and Pacific Islander judges—more than double the number of AANHPI confirmations during any previous single presidential term.

But Biden went beyond demographic diversity to add diversity of professional background as well. Moving beyond the typical picks of prosecutors and Big Law partners, Biden appointed public defenders, civil-rights attorneys, and labor lawyers to the bench.

Of Biden’s first 205 appointees, 20% had experience as public defenders. Compare that to the 1% percent of circuit judges who spent most of their careers as public defenders or within a legal-aid setting, according to a study undertaken by the Center for American Progress in 2020, the year before Biden took office.

Ideology

The difference between law and politics is both real and significant. At the same time, from the perspective of a president rather than a judge, success in judicial appointments can be measured partly by how much a president moved the judiciary in their preferred policy direction, whether to the left or right.

On this front, Biden fared less well. Starting with the Supreme Court, his appointment of Jackson to replace Justice Stephen Breyer didn’t change the ideological balance of the court.

Compare that to Trump’s highly consequential replacement of the late Justice Ruth Bader Ginsburg by Justice Amy Coney Barrett. That shifted the court from a 5-4 to 6-3 balance in favor of conservatives, creating a supermajority that succeeded in overruling Roe v. Wade.

Let’s now turn to the circuit courts—which are important because they resolve almost all cases that get appealed, given how few cases the Supreme Court agrees to hear. Observers of the judiciary often speak of “flipping” a circuit—changing its composition from a majority of Republican appointees to a majority of Democratic ones, or vice versa.

Trump successfully flipped three federal appeals courts: the Philadelphia-based Third Circuit, the Atlanta-based Eleventh Circuit, and the New York-based Second Circuit. He also appointed 10 judges to the Ninth Circuit, the largest federal appellate court, which brought that famously liberal court to near ideological parity. In contrast, Biden managed to flip only one circuit, bringing the Second Circuit back to a majority of Democratic appointees.

Influence

How did Biden fare in terms of appointing highly influential judges to the federal bench? Have they been intellectual leaders of the judiciary, issuing opinions that reshape the law, change the way we think about legal issues, or even just generate buzz?

This is admittedly a more subjective factor than the first two. And my subjective, personal answer would be no.

Let’s put aside Jackson, who has carved out a distinct approach that could be described as “progressive originalism”—and who always was destined to garner attention by virtue of sitting on the Supreme Court. Looking at the lower courts, one is hard-pressed to identify Biden appointees who have made names for themselves as bold thinkers or compelling writers.

The strongest candidate might be Fourth Circuit Judge Toby Heytens. A former clerk of Ruth Bader Ginsburg and professor at the University of Virginia School of Law, he has written progressive opinions tackling controversial issues such as race-conscious admissions and transgender athletes in girls’ sports.

But he’s far outnumbered by Trump appointees who drive debate and garner headlines, including four strong Supreme Court contenders—Fifth Circuit Judges James Ho and Andrew Oldham, Sixth Circuit Judge Amul Thapar, Ninth Circuit Judge Patrick Bumatay—and acclaimed writers such as Third Circuit Judge Stephanos Bibas and Eleventh Circuit Judge Kevin Newsom.

Contrast the dearth of Biden appointees in the ranks of federal judicial thought leaders with the ubiquity of Trump appointees. Two law professors, Stephen Choi of New York University and Mitu Gulati of the University of Virginia, studied federal appellate judges based on productivity, influence, and independence. As they told me in an interview, “Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.”

This is especially true when factoring influence based on citations to a judge’s opinions. Nine out of the top 10 most-influential judges in the study were Trump appointees (the one Democratic appointee in the top 10 was Third Circuit Judge Cheryl Krause, an Obama appointee).

It’s true that the Biden-appointed judges have been on the bench for less time than the Trump-appointed judges. But Choi and Gulati wrote that “none of the Biden appointees, even when we try to control for their lower amount of time on the bench, make it to the top tiers in our rankings.”

Numerous observers have suggested that Trump’s most notable accomplishment or enduring achievement from his first term was his transformation of the courts, including but not limited to the Supreme Court. I doubt the same will be said about Biden.

Biden certainly succeeded in changing how the federal judiciary looks, in terms of the faces we see on the bench. To the extent that a more diverse judiciary increases public confidence in the courts, that’s important. But whether he managed to make changes that are more than skin-deep, in terms of appointing judges who will take the courts in a more progressive direction or make significant contributions to developing legal doctrine, remains unclear.

(Updates first paragraph with clarification that two more Article III judge confirmations are expected before the end of the year)

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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