By Nate Raymond
(Reuters) – President Joe Biden is set to secure U.S. Senate confirmation of his 200th appointment to the federal judiciary on Wednesday, surpassing his Republican predecessor Donald Trump‘s pace even as the clock ticks toward their Nov. 5 election rematch.
Reaching this milestone at this point in his presidency is evidence, according to Biden’s allies, that he may achieve a goal his fellow Democrats not long ago fretted could be out of reach – matching Trump’s tally of 234 judges appointed to life-tenured positions on the federal bench in four years in office.
Challenges in confirming judicial nominees in the Senate, where Democrats hold a slim 51-49 majority, had left Biden behind Trump’s pace at the start of this year. In fact, Democratic Senator Dick Durbin, who chairs the Senate Judiciary Committee that reviews such nominations, had previously called reaching the 200 mark a year-end goal.
With Biden’s tally at 199, the Senate has a vote scheduled for Wednesday on confirming U.S. Magistrate Judge Angela Martinez as a district court judge in Arizona.
One way Biden has managed to surpass Trump’s pace has been to cut deals with Republican senators to fill vacancies at the trial court level in their home states. That means Biden has sometimes picked compromise, moderate nominees rather than judges more to the left as he might prefer.
Trump, with the Senate then controlled by Republicans, appointed the second-highest number of judges on record in a single term in office, behind only Jimmy Carter. Biden is nearing Trump’s tally despite inheriting less than half as many vacancies to fill when he took office as Trump had.
Durbin said in an interview that Senate Democrats have “done better than I expected” in confirming Biden’s nominees and that reaching Trump’s tally is possible now, though hurdles remain.
“I’m going to keep pushing forward as long as we have good nominees that I can send to the (Senate) floor for consideration,” Durbin said.
BEYOND THE NUMBERS
Trump succeeded in moving the federal judiciary rightward, including giving the U.S. Supreme Court a 6-3 conservative majority, up from an evenly split 4-4 when he took office. Trump named three conservative justices to the top U.S. judicial body: Neil Gorsuch in 2017 to fill a vacancy that Senate Republicans had refused let Democratic President Barack Obama fill in 2016; Brett Kavanaugh in 2018; and Amy Coney Barrett in 2020.
The Supreme Court since then has delivered rulings cheered by conservatives including overturning abortion rights, widening gun rights and limiting the power of U.S. regulatory agencies.
Biden has made a single appointment to the Supreme Court: liberal appellate judge Ketanji Brown Jackson in 2022, the first Black woman to serve as a justice. All told, Biden has appointed 23% of the 874 federal judges as he edges the judiciary back in a more leftward direction.
“That’s a significant change considering the kinds of nominees that have been put on the bench,” Durbin said.
Trump’s outsized influence on the judiciary included his appointment of 54 judges to the 13 federal appellate courts that are a step below the Supreme Court. Biden has made 41 such appointments.
Durbin also praised the diversity that Biden has brought to the bench. Two-thirds of his appointees are women, and about the same proportion are Black, Hispanic or other racial minorities.
‘RUN THE TABLE’
Thomas Jipping, a senior legal fellow at the conservative Heritage Foundation think tank, said Biden’s six predecessors dating to 1981 averaged about 30 confirmed judges between this point in the final year of a presidential term and Dec. 1 of that year, making it unlikely Biden can reach the 235 needed to surpass Trump.
“You’d have to run the table,” Jipping said.
Biden has 25 pending nominees. The Judiciary Committee’s calendar has enough hearings scheduled for it to process enough nominees and send them to the Senate floor for confirmation votes to enable him to eclipse Trump.
But nominations can easily stall in a Senate so closely split. Biden’s pick to become the first Muslim federal appeals court judge, Adeel Mangi, faces an uncertain path to joining the Philadelphia-based 3rd U.S. Circuit Court of Appeals after three Democrats said they would vote with Republicans against him.
Senate Democrats have successfully secured confirmation of other contentious nominations such Nicole Berner, a top union lawyer who formerly worked at abortion provider Planned Parenthood. The Senate confirmed Berner in March to the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals.
The White House has cut deals with Republican U.S. senators in states like Florida, Indiana, Oklahoma, South Carolina, Texas and Wyoming to move forward on nominations for trial judge positions in those states. There is a Senate custom that nominees for such judgeships receive a “blue slip” – an informal endorsement – from their home-state senators, regardless of party.
“There is not a single day where I am not interfacing with some Republican office,” Phil Brest, the White House senior counsel in charge of nominations, said in an interview.
George Washington University law professor John Collins, who studies judicial nominations, said Republican senators are more likely to sign off on candidates who are older, former prosecutors or worked in corporate defense. But such compromises mean that Biden can fill positions now rather than risk Republicans regaining Senate control in the November election or Trump regaining the presidency.
The White House goal now, Collins said, is to “avoid more extreme outcomes in the future.”
(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi and Will Dunham)
