President Trump’s astonishing track record in judicial appointments will not only reshape the judiciary for a generation, but it will likely deny President-elect Joe Biden the opportunity to leave much of his own mark on the courts.
In numbers: Trump took office with 17 vacancies in federal circuit appeals courts, plus an open seat of the Supreme Court. In the end, he held three Supreme Court seats and appointed 54 circuit judges in just one term – the Senate locked up the 54th, a replacement for Judge Amy Coney Barrett on the 7th circuit just this week. President Obama got a total of 55 during his two terms.
- The appointments will be the outgoing president’s most lasting, substantive legacy.
What’s next: Only two appeals vacancies now await the president-elect, and he will not have a realistic chance of changing the ideological balance in the Supreme Court, which is currently divided by a conservative 6-3 majority.
- There are 47 job openings at federal district courts. If Democrats control the Senate, Biden could potentially fill many of those gaps.
- But those judges’ rulings would then be appealed to the circuit courts now filled with Trump-appointed officials, and from there to the Supreme Court, with its extended Conservative majority.
Between the lines: If Republicans start controlling the Senate, Biden may forget to fill almost all of the major judges, especially with progressive or polarizing nominees. But his legal legacy will be limited even if Democrats take the Senate.
- Without a backlog of vacancies to begin with, Biden can only fill vacancies that arise while he is president.
- That means he will likely be largely limited to replacing liberal judges – and in a 50-50 senate, he will have to make safe choices to avoid losing the support of moderate Democrats.