President Joe Biden
President Joe Biden is wrapping up 2021 with more judges confirmed to the federal bench than any first-year president since Ronald Reagan, and experts say a growing list of judicial vacancies could allow him to appoint even more in 2022.
The Senate confirmed 40 of Biden's judicial nominees, including 11 appellate picks, despite early concerns among progressives that he would lack opportunities to fill seats on nation's 13 circuit courts.
Biden inherited just two appellate vacancies, while former Republican President Donald Trump had 17 at the start of his term. That early advantage helped Trump make a near-record 234 federal court appointments over the four years of his presidency.
But as Democratic-appointed judges elected to go into semi-retirement by taking senior status, Biden quickly gained the chance to appoint a diverse set of judges. The White House says 78% of his confirmed judges were women and 53% were people of color.
"This is an unsung true success story of the Biden administration in the midst of all kinds of complications," said Russ Feingold, a Democratic former senator from Wisconsin and leader of the American Constitution Society, a progressive group active in recommending judges.
More are expected: The Senate on Jan. 3 will vote on a 9th Circuit pick it failed to act on before the holidays, Gabriel Sanchez, and it is expected to vote later on Holly Thomas.
A Democratic Senate Judiciary Committee aide said the panel, led by Democratic Senator Dick Durbin of Illinois, plans a steady stream of hearings on nominees to allow Biden to easily surpass this year's 40 confirmed judges and potentially reach over 100 in 2022.
Biden nominated 73 district court and circuit court judges overall. His 40 confirmed picks surpassed the 18 judges confirmed during Trump's first year, according to data collected by Russell Wheeler, a visiting fellow at the Brookings Institution.
They included Ketanji Brown Jackson, a potential future U.S. Supreme Court candidate, for the D.C. Circuit; Eunice Lee, a federal defender now on the 2nd Circuit; and Beth Robinson, who upon joining the 2nd Circuit became the first openly LGBT woman to ever serve on a federal appeals court.
Progressive groups have cheered as Biden reached beyond the ex-prosecutors and law firm partners who typically make up the nominee pool by tapping public defenders and civil rights lawyers.
Democrats led by Senate Majority Leader Chuck Schumer of New York and Durbin have pushed to rapidly confirm the nominees amid fears their party may lose its narrow 50-50 control of the chamber in next November's midterm elections.
"Quite frankly I think that's why we are seeing the uptick now in judges taking senior status," said Marin Levy, a professor at Duke University School of Law.
In December alone, five Democratic appellate appointees and two Republican-appointed circuit judges announced they would take senior status, handing Biden seats to fill on the 3rd, 4th and 6th U.S. Circuit Courts of Appeal.
The judiciary lists 69 district and circuit vacancies without any nominees. Another 21 Democratic-appointed judges are eligible for senior status or will be by 2022's end, said John Collins, a visiting law professor at George Washington University.
Senate Democrats are bracing for potential Republican resistance, particularly as the White House approaches picking nominees to replace judges in states with one or more GOP senators, who historically would be consulted.
But Collins said Biden in 2022 should be able to surpass this year's appointments, even factoring in distractions for midterms and a potential fight over a Supreme Court seat should liberal Justice Stephen Breyer, 83, retire as many Democrats hope.
"It's usually slower in the first year when administration comes in," Collins said. "They can hit the year running in year two."
Reporting by Nate Raymond in Boston
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