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Battle of the bench: Biden nearly even with Trump on judicial confirmations

Dec 11, 2023

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President Biden is nearly even with former President Trump on federal judicial confirmations at the same point in their presidencies. By Nov. 6 2019, Trump had confirmed 158 judges: two Supreme Court justices, 44 circuit court judges, and 112 district court judges. As of Nov. 7, 2023, Biden had confirmed 150: one Supreme Court justice, 36 circuit court judges, and 113 district court judges.

“They say that for a lot of presidents, their judicial appointments are the biggest influence on the country they’ll ever have. And certainly they are one of the longest lasting,” Walter Olson, a CATO Institute senior fellow, told Straight Arrow News. 

The path to confirmation goes through the Senate Judiciary Committee, which was led by Sen. Chuck Grassley, R-Iowa during Trump’s term, and is now chaired by Sen. Dick Durbin, D-Ill., under President Biden. 

Grassley helped shepherd two of Trump’s Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, through the confirmation process. He said that Trump’s three Supreme Court confirmations set him apart from Biden.  

“I think it’s very clear with 6-3 division within the Supreme Court has led to a more strict construction of the Constitution,” Grassley told Straight Arrow News. 

Durbin said Biden is making his mark with demographics. Biden has appointed 100 women and 98 people of color, including 49 Black judges. He has also appointed lawyers for labor unions and cause groups like the ACLU and Southern Poverty Law Center.

“I think we have introduced a new category,  or class of federal judges, focusing on women, minorities and those with professional backgrounds that are different than their predecessors,” Durbin told Straight Arrow News.

“One area that’s interesting, because it got some support from places like my own CATO Institute, was to look not just at prosecutors but at public defenders and other lawyers representing the criminal defense side, which is just as much a part of our law as the prosecution side,” Olson said. “And Biden did exactly that. And he, in fact, has gotten some praise from Libertarians as well as from Democrats for appointing a number of public defense background lawyers.”

Trump prioritized ideology, including constitutionalists or originalists, who try to interpret the Constitution exactly as the founders intended.

“As part of his overall ideological screening, he appointed some lawyers whose main career background had been things like religious liberty litigation, and that has shown up in some of the controversial decisions that these judges have made,” Olson said. 

While most of the the attention goes to Supreme Court nominees, the reality is an overwhelming majority of cases never get there. Federal courts of appeal handle more than 50,000 cases a year, while the Supreme Court is asked to review about 7,000 and only hears about 100 to 150. 

“It’s much more for both Trump and Biden a question of — how do you want to reshape this institution by reshaping who sits on it very purposefully,” Olson said. 

“The Democrats learned a lesson from Trump: move quickly on judges,” Grassley said.  

Durbin told Straight Arrow News that he plans to do exactly that in 2024.

“I want every competent nominee to have their chance to be heard before the committee and a chance to be voted on, on the floor,” Durbin said.

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Since 2017, the federal judiciary has been under a microscope. From controversial appointments to the Supreme Court 

“ So help me god” 

to the efforts to confirm as many district and circuit court judges as humanly possible.

“I do” 

Both Republicans and Democrats operate on a new modus operandi –it’s not enough to pass legislation, (time it so the biden pop starts after line) 

Biden: the patient protection and affordable care act is passed 

you need to have the right people in place to protect it from legal challenges. 

Walter Olson, CATO Institute Senior Fellow: “It’s much more for both Trump and Biden a question of – how do you want to reshape this institution by reshaping who sits on it very purposefully?” 

To that end, Judicial confirmations were a cornerstone of Donald Trump’s presidency and both his 2016 and 2020 campaigns. 
Donald Trump, “Over the next four years, America’s President will choose hundreds of federal judges, and, in all likelihood, one, two, three, and even four Supreme Court justices.  The outcome of these decisions will determine whether we hold fast to our nation’s founding principles or whether they are lost forever.

Trump’s nominations received intense focus. President Biden’s have not had as much attention, despite the fact that at this point in their presidencies, their number of confirmations is nearly equal. 

By Nov. 6 2019, President Trump had confirmed two Supreme Court justices, 44 Circuit Court judges, and 112 District Court judges for a total of 158. 

As of November 7, 2023, President Biden had confirmed one Supreme Court justice, 36 circuit court judges, and 113 district court judges, totaling 150. 

Walter Olson, CATO Institute Senior Fellow: “They say that for a lot of precedents, their judicial appointments are the biggest influence on the country they’ll ever have. And certainly they are one of the longest lasting influences.”

The nominee’s path to confirmation goes through the Senate Judiciary Committee, which is currently chaired by Senator Dick Durbin and (senate judiciary 3) was chaired by Senator Chuck Grassley during the Trump administration. 

Ray: “Where do you think the difference is in the impact they’ve had on the federal bench?
” 

Sen. Chuck Grassley, R-Iowa: “Well as far as the United States Supreme Court is concerned I think it’s very clear with 6-3 division within the Supreme Court has led to a more strict construction of the constitution.” 

Sen. Dick Durbin, D-IL: “Well, I think we have introduced a new category reclass federal judges, focusing on women, minorities and those with professional backgrounds that are different than their predecessors.”

Biden has appointed 100 women and 98 people of color, including 49 Black judges. He’s also appointed lawyers for labor unions and cause groups like the ACLU and Southern Poverty Law Center. 

Olson: “One area, that’s interesting, because it got some support from places like my own Cato Institute was to look not just the prosecutors, but it public defenders and other lawyers representing the criminal defense side, which is just as much a part of our lives the prosecution side. And Biden did exactly that. And he in fact, has been has gotten some praise from libertarians as well as from Democrats for appointing a number of public defense background lawyers.”

Trump prioritized ideology, including constitutionalists or originalists, who try to interpret the constitution exactly as the founders intended. 

Olson: “As part of his overall of ideological screening. He appointed some lawyers whose main career background had been things like religious liberty litigation, and that has shown up in some of the controversial decisions that judges have made.” 

And while just about all the attention goes to Supreme Court nominees, (Supreme Court Getty) the reality is an overwhelming majority of cases never get there.Federal courts of appeal handle more than 50,000 cases a year. The Supreme Court is asked to review about 7,000 and only hears about 100 to 150. 

Sen. Chuck Grassley, R-Iowa: “The Democrats learned a lesson from Trump – move quickly on judges.” 

hat’s exactly what Chairman Durbin says he plans to do in 2024. 

Sen. Dick Durbin: “I want every competent nominee to have their chance to be heard before the committee had a chance to be voted on the floor.”