A Lasting Legacy: Judicial Vacancies and the American President

Image Courtesy of Forbes

By Chris Carey

In a symbolic nod toward the former Supreme Court Nominee, President Joe Biden put forward Merrick Garland as his Attorney General pick. With the approval process slowed and President Trump’s second impeachment trial underway in the Senate, one looks forward to how Biden may aim to make what is arguably the most lasting impact of a president: the judicial appointments of the four years.

Through the working of Mitch McConnell in the Senate and former President Trump in the White House, the past four years saw more than 220 appointments to the Federal Bench; conversely, Barack Obama’s presidency saw only 100 more with 320 over twice the time. How did President Trump achieve such an astonishing benchmark? Will President Biden employ the same methods?

In an address at the Columbus School of Law last year, member of the American Constitution Society and President of the Women’s Bar Association in the District, Jill Dash, described the differences between Trump’s judicial appointments and many presidents before, citing the removal of the blue slip process and the push toward more partisan individuals on the bench. Procedurally, the Trump Administration in conjunction with Senate Republicans used every trick in the book to push through the unprecedented number of appointed, and subsequently confirmed, federal judges. 

Mitch McConnell, the Majority Leader in the Senate at the time, decided to take the so-called nuclear option of removing the filibuster from confirmations. Where 60 votes were needed before, now only a simple majority would be needed. Removing the filibuster was a consideration as Democrats took control of the Senate this year; however, as of now it appears that the filibuster is here to stay.

With that measure still in place, the judicial process may look much different under the new administration. Per the Washington Post, the Biden team is prepared to formally advance nominations prior to approval of the American Bar Association (ABA). This is similar to the steps Trump took, and a promising sign for individuals interested in filling judgeships swiftly under the Biden administration.

Already, it is reported that the Biden administration has crafted a retinue of individuals to fill possible vacancies. President Biden, formerly Chairman of the Judiciary Committee in the Senate, certainly understands the long term effects the judiciary at all levels, not just the Supreme Court, can have on his legacy as president. More importantly to the administration is the effect on the lives of Americans that judicial precedent and decisions can make.

Furthermore, although highly unlikely that President Biden will be faced with three Supreme Court vacancies as with Trump, it is possible that octogenarian Justice Stephen Breyer, a Clinton appointment, may step down from the bench in order that a justice appointed by a Democrat might take his place. However, as seen with Justice Ginsberg, those expectations might not always be reality.

With COVID-19 as the primary focus of both the Congress and the Executive, it may seem at first glance that nominations for the judiciary are not a top priority; nevertheless, one can be sure that the Biden White House will not be slow to act as judicial openings come about.

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