According to Ballotpedia, “During his one term in office, President Donald Trump (R) nominated 274 individuals to federal judgeships. Trump made 245 judicial appointments. Of those appointments, 234 were Article III judges [which are confirmed by the Senate and serve for life]. Trump withdrew eight nominees and 143 received no vote from the Senate.”
An analysis by the Pew Research Center found, in early 2021, that the twice-impeached, defeated former President has had an enormous influence on the courts despite his having served only one term. First, Trump has “appointed a smaller share of non-White federal judges than other recent presidents.” This means that federal judges in general are not reflective of our nation’s demographic makeup. Second, “[m]ore than a quarter of currently active federal judges are now Trump appointees;” thus three-quarters of the active judges have been appointed by all other previous Presidents. The decisions made by Trump’s appointees throughout the country will have influence over a tremendous number of issues – and over individual Americans – for many years.
These judges (in addition to Trump’s three Supreme Court justices) tend to be very conservative – or even reactionary – politically on abortion, guns, religious rights, voting rights, immigration, criminal justice reform and other issues. In the words of one team of researchers, “Trump has appointed judges who exhibit a distinct decision-making pattern that is, on the whole, significantly more conservative than previous presidents.” Trump has, of course, been greatly aided in his efforts to make the courts much more right-leaning by Senate Minority Leader Mitch McConnell (D-KY) and the conservative Federalist Society and Heritage Foundation.
Democrats and others on the left of the political spectrum are therefore extremely concerned about Trump’s nominations and appointments. Despite numerous polls that show that the American people support so-called “liberal” or “progressive” policies on issues such as reproductive rights, sensible gun control, the DACA program and legal immigration, and voting rights and opposition to voter suppression, the decisions of conservative judges could effectively overturn the will of Americans in highly significant ways.
Therefore, it is important to keep track of what the Biden-Harris Administration is doing when it comes to federal judgeship appointments. First, Biden is aware of the urgency of making appointments and getting them through the confirmation process. He “has appointed and the Senate has confirmed eight Article III federal judges through August 1 of his first year in office.” This is well over the average number of three appointments since Reagan. Article III judges are those appointed to the Supreme Court, the US courts of appeal, the US district courts, and the Court of International Trade.
Second, the pace is record-breaking for confirmations – the fastest rate in over 50 years. Whether this pace continues remains to be seen. But the appointments will help to make a dent in the damage that Trump’s have done and will continue to do.
Third, Biden’s appointments are significantly more diverse with regard to both gender and race/ethnicity than past Presidents (including Obama). Biden’s appointments are 21.43% white, 35.71% black, 7.14% Latinx, 7.14% Asian-American, 0% Native American, and 21.43 % two or more races (same as the white rate). Women make up more than 78% of Biden’s appointees (compared to Trump’s 24% and 42% of Obama’s). This diversity has several important ramifications:
- Biden is making quality nominations that are getting through the Senate despite general GOP obstruction on many issues and the 50-50 division between Democrats and Republicans.
- Biden’s prioritizing of making federal judicial appointments shows that he and his team recognize the vital importance of the courts in American life. This recognition is no accident. Republicans and conservatives have long recognized the importance of the courts, due to the right’s concerns with “culture war” issues like abortion and gun “rights,” and they have put enormous amounts of money and effort into their causes. For the past several years, the left has started to use some of the same tactics to offset the right’s determined erosion of previous significant gains on social issues. Biden’s and other organizations’ mission now to ensure quick affirmations of qualified candidates and those candidates’ diversity is encouraging and important at many levels.
- Having judges that better reflect issues of concern to Americans other than (or in addition to) white males means that they hear cases more from the perspective of women and underrepresented minorities in our society. Racial and gender diversity in all aspects of our lives has been shown to greatly improve the quality of life for everyone. (White male judges may be highly competent and even fair-minded, but they just do not have the same life experience as a female or minority judge.)
- The point of having diversity among our nation’s judges is not to discriminate against white men or replace them but to try to build a system that metes out justice in a way that most Americans profess to want: one that is truly fair and blind. Like any other professional “guild” in our country, that of lawyers, judges and justices must strive for the highest quality of conduct and the demographic makeup that looks like the rest of us. This overall goal helps move us toward “a more perfect union.”
The makeup of federal judgeships should be of concern not only to the President and his team but to all of us. At any point, we ourselves, our family, our friends or our colleagues could find ourselves in a situation that involves a judge in one of the Article III courts. For now, for example, Texas’ harsh anti-abortion law, with which the Supreme Court earlier chose not to interfere, has been paused by Robert L. Pitman, a Federal District Court judge in Austin, while challenges by anti-abortion activists pursue the law’s enactment through various federal courts. Judge Pitman’s ruling is being hailed by Attorney General Merrick Garland, but the final result remains to be seen. The Texas law is being used throughout the country as a blueprint for other strict anti-abortion measures in other states that could be used to overturn Roe v. Wade – thus affecting women and their loved ones throughout the US.
The situation with the federal courts and those judges is another example of how Americans can never rest when it comes to important gains in our society. We must realize that such gains and progressive movement on any number of issues can be reversed or undone if enough money, will, hunger for power and disinformation emanate from the “other side.” It is, frankly, exhausting to live in a democratic republic where we always have to be vigilant about our rights and upholding the rule of law. But for those of us who hope never to live under a totalitarian system or a ruthless dictator, as so many people do around the world, we keep finding the energy, will, talent, time and resources to continue the struggle to preserve our Constitution and beloved Union.