WASHINGTON — President Donald Trump’s own judicial nominees handed down some of his biggest postelection losses, but the confirmation of more than 220 judges over the last four years is a Republican achievement that will far outlast his presidency — and one that President-elect Joe Biden will have a hard time undoing.
The numbers are there on paper for Biden to leave his own, sizable legacy on the bench, but he’ll start at a disadvantage. There are 60 open judgeships — less than half of what Trump inherited in January 2017 — and Republicans are racing to fill as many of those seats as they can before Biden is sworn in. The Senate on Tuesday confirmed a judge for Justice Amy Coney Barrett’s former seat, and the Senate Judiciary Committee held a hearing for an appeals court nominee on Wednesday.
If every remaining active judge confirmed under former president Bill Clinton stepped down over the next four years, that would give Biden 87 seats, according to judiciary records. Most of the 164 active judges confirmed under former president George W. Bush will be eligible for “senior status” — a type of quasi-retirement that frees seats for new nominees — over the next four years, but it’s hard to predict how many will take the option. A small number of the 315 active judges confirmed under former president Barack Obama are eligible for senior status, but most won’t meet the criteria until 2024.
Trump also had the benefit of a Republican-led Senate for four years. If Democrats fail to capture both of Georgia’s Senate seats in the January runoff election, Biden will have to reckon with Senate Majority Leader Mitch McConnell for at least two years — possibly four depending on the midterm elections — an arrangement that could force compromises and concessions at best. With a Senate majority, McConnell will control when to bring Biden’s nominees to a vote, if at all.
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Not all judges factor in politics in deciding when to step down. But it’s not a coincidence that many of the seats Trump filled were previously held by past Republican nominees — the administration and Senate Republicans actively reached out to at least some senior-eligible judges, a practice that predates Trump — and Democrat-appointed judges who want some assurance that their successor will match their ideological leanings and judicial philosophy are doing the math. They also know that the longer they wait, the less they can control; Trump was able to fill the seats of two liberal legal icons, the late justice Ruth Bader Ginsburg and the late 9th Circuit judge Stephen Reinhardt, who were both in their eighties and still in active service on the bench when they died.
“If Democrats get the Senate, I would take [senior status] maybe at the end of January, might hold off until April,” said a Clinton-nominated federal appeals judge who was eligible to take senior status under Trump; the judge requested anonymity because ethics rules restrict judges from speaking about politics. “If they don’t get the Senate, it will depend on what kind of deal is worked out between the president and the Senate.”
The judge explained that if Democrats didn’t win the Senate and they couldn’t have “confidence” in the qualifications of their successor, they were prepared to stay put as an active judge for two more years. But the judge said they wouldn’t wait indefinitely, given the possibility of McConnell holding up Biden nominees before the 2024 election as he did during Obama’s final years in office.
“I’d have to go in two years,” the judge said. “I could be locking myself into a life on the bench.”
Biden’s transition team is already building out lists of possible nominees. According to two sources familiar with the transition team’s work who weren’t authorized to speak publicly, that effort is being led by two Senate veterans with years of judicial nominations experience — Josh Hsu, who worked for both Vice President–elect Kamala Harris and Sen. Patrick Leahy, and Paige Herwig, who worked in the Obama administration and for Sen. Dianne Feinstein before joining Demand Justice, an advocacy group that launched in 2018 to oppose Trump’s judicial nominees.
Unlike Trump, Biden hasn’t committed to releasing a list of potential Supreme Court nominees. But, during the campaign, he pledged that if a vacancy opened up, he would nominate a Black woman, which would be a first on the high court. He brings firsthand experience with the intricacies of judicial nominations, having spent much of his Senate career as a member of the Senate Judiciary Committee, including 17 years either as the chair or ranking Democrat. Harris spent the past four years opposing Trump’s nominees as a member of the committee.
“Joe Biden proudly championed the historic confirmations of Justices Ginsburg, Sotomayor, and Kagan, and reshaped the Senate Judiciary Committee to reflect the diversity and breadth of America,” transition spokesperson Jamal Brown said in a statement to BuzzFeed News. “As president, he will nominate the first Black woman to the Supreme Court, and appoint judges who share his commitment to the rule of law, and upholding individual civil rights and civil liberties.”
Advocacy groups have wasted no time sending Biden’s team their own lists. They’re not only pitching specific names, but also broadly making the case for Biden to quickly fill vacancies — liberals faulted Obama for not moving fast enough in his first term when Democrats controlled the Senate — and to prioritize nominees who are diverse, both in personal background and professional experience: more public defenders and civil rights lawyers, fewer prosecutors and corporate attorneys. A coalition of 71 groups signed an open letter to that effect shortly after the election.
The Trump administration’s laserlike focus on judicial nominations was the result of decades of successful organizing and pipeline-building by the right, and liberal advocacy groups spent the last four years trying to catch up. The American Constitution Society, the main membership organization for liberal lawyers, and legacy liberal advocacy groups like Alliance for Justice launched formal nominee recruitment projects, and new courts-focused groups like Demand Justice emerged.
The American Constitution Society, created in 2001 as a counterpoint to the conservative judicial juggernaut, the Federalist Society, gave Biden’s transition team a list of 352 potential federal judges — more than half are women, just under half are BIPOC, and many have backgrounds working in legal aid, civil rights, academia, and public defender offices. ACS President Russ Feingold, a former Democratic senator from Wisconsin, said he was impressed by the transition team’s efforts so far and that they seemed “very methodical, very careful in terms of making sure the ball isn’t dropped.”
“Whether the complete damage that’s been done by Trump can be undone is unlikely.”
“We believe President Biden and some of his top people are particularly well versed in this issue,” Feingold said. “Whether the complete damage that’s been done by Trump can be undone is unlikely, but a substantial amount can be.”
Alliance for Justice also shared lists of several hundred potential nominees with Biden’s team shortly after the election. AFJ President Nan Aron said they hoped Biden would begin announcing nominees as soon as he’s sworn in, and expected a wave of judicial retirement and senior status announcements to follow in early 2021.
“We’re asking [the Biden administration] to be ready to fight for the nominees and to abide by the rules that were put in place by Senate Republicans to fast track the confirmation process,” Aron said.
Liberal advocates are bracing for bitter Senate battles if Republicans keep the majority. Demand Justice Executive Director Brian Fallon said they’re prepared to devote substantial resources to ad campaigns, pressure campaigns on senators, and other grassroots organizing to support “bold and forward-leaning” nominees who might face Republican opposition. Fallon, who served in the Justice Department during the Obama administration and previously worked in the Senate, said some Obama alumni felt they didn’t have enough “air cover” for politically divisive picks.
“We want to make sure that type of thinking does not work against any of the types of nontraditional lawyers that we want to get considered. We want to send a clear signal that we will have the backs of those types of nominees,” Fallon said.
Assuming Republicans keep control of the Senate, Sen. Chuck Grassley will return as the chair of the Senate Judiciary Committee, taking over from Sen. Lindsey Graham. Grassley can control the pace of confirmation proceedings but brushed off Democratic concerns that Biden nominees wouldn’t move at all through the committee.
“I would say the clock starts ticking the minute the White House sends some nominees up. When that is, I don’t know. Then there’s generally two to three weeks after that before we vet everything and then you have hearings,” Grassley said. “We’re obviously going to hear judges.”
There’s also the question of what happens to the calls for structural court reform that new Trump-era liberal groups like Demand Justice and Take Back the Court pushed to make part of the Democratic presidential primaries, such as adding seats to the US Supreme Court and to the lower courts. Fallon said they’ll advocate for that with the White House and Congress, as well as keep up grassroots organizing to build momentum around the issue with the Democratic base. The federal judiciary has asked Congress for years to add judgeships to keep up with caseloads in certain courts.
Democrats also worry that Biden’s policies could be blocked or hamstrung by Trump-appointed judges and by the Supreme Court, which now has a deeper conservative majority following Barrett’s confirmation. Fallon said that will become part of their messaging as well.
“Either there’s enough salience that builds around these issues and enough public outrage that can be stoked about Trump judges trying to uphold Trump policies even after Trump’s been evicted from office, it sort of prods McConnell to act on judges he might otherwise hold up,” Fallon said. “Or builds up resolve among Democrats to do something structural.”
Trump inherited 19 appeals court vacancies in January 2017, but there are just two open seats on the federal appeals courts now, and the Senate Judiciary Committee held a hearing on a nominee for one of them on Wednesday; there is no nominee yet for the other one. There were 60 total federal court vacancies as of mid-December — with more than 30 nominees pending at various stages of the confirmation process — which is less than half of the 128 seats open when Trump took office.
The Senate has confirmed more than a dozen federal judges since Election Day, and more votes are expected before the Senate recesses at the end of the month.
Federal judges are eligible to take senior status once they’ve satisfied what’s known as the Rule of 80. They must be at least 65 years old and have served 15 years as a federal judge. Senior judges keep a full salary, but they can reduce their caseload. The tradeoff is reduced power, especially on the appeals courts. Senior judges generally can’t participate when the full or “en banc” circuit court hears a case and potentially sets new precedent, for instance.
There are 79 federal appeals judges who are either eligible to take senior status now or who will become eligible over the next four years, according to a review by BuzzFeed News. Of those judges, 47 were confirmed under a Democratic president and 32 under a Republican; it’s unlikely all of those judges will step down over the next four years, however. Federal judges enjoy lifetime tenure and often keep their active status for years, or even decades, after they’re eligible for senior status, regardless of who is in the White House.
Trump nominated enough judges to flip the ideological balance of judges on three federal appeals courts — the 2nd, 3rd, and 11th Circuits; those majorities are slim enough that Biden could flip those courts back, but that would depend on Republican-appointed judges stepping down. Trump also dramatically narrowed the gap between Democratic and Republican nominees on the 9th Circuit, which covers the western United States and has long been a liberal powerhouse court. Judges don’t always rule in ways that match the politics and legal philosophies of the president who appointed them, but it can be a reliable way to suss out the conservative or liberal leanings of a court when it comes to cases that traditionally divide judges along those lines, such as executive power, abortion access, gun rights, and civil rights.
Biden has a chance to shore up the liberal majorities on several courts, including the 9th Circuit and the powerful DC Circuit. The three remaining Clinton nominees on the DC Circuit are already senior-eligible, including Judge Merrick Garland, a reported contender for attorney general under Biden, and Obama’s unsuccessful Supreme Court nominee.
A handful of judges who agreed to speak with BuzzFeed News, some for attribution and some not, said politics can be a factor, but it’s not always the driving force in their decision-making around retirements and senior status.
US District Chief Judge John Jones III, who was confirmed under George W. Bush, became eligible for senior status when he turned 65 this summer. He said that last year a Senate aide — he declined to identify the aide or the senator, but said it was “really an emissary from the president” — approached him and “reminded” him that he could open up his seat for Trump. Jones said he declined, citing the fact that he was next in line for chief judge, a job that he took over in the spring.
District judgeships tend to be less politicized than appeals court nominations, but there are occasionally fierce partisan battles over those seats. Jones said he has no plans to leave now that he’s chief judge, but said the party of the president wouldn’t control his decision, and he knew from conversations with colleagues that other judges felt the same way.
“I wouldn't have any hesitation whatsoever” about stepping down under a Democratic president, Jones said. “Elections mean something, presidents nominate people. I’ve been at this 18-plus years, and I think you have to do what’s right for your court and what’s right for yourself at the appropriate time.”
The Trump administration prioritized tapping young judicial nominees with strong conservative credentials. Jones had positive things to say about the new additions on his court but said generally that he was “concerned” by the lack of practice experience of some of Trump’s district court nominees, and hoped Biden would take a different approach.
“I would hope that, and I think this will be true in the Biden administration, they’ll be a little bit more circumspect — not criticizing any single appointee by President Trump, but you want to give a nod to experience. Relative youth is OK, but particularly in the trial bench we need able people who have experience,” Jones said.
Judge Michael Kanne, who was confirmed to the 7th Circuit under then-president Ronald Reagan in 1987 and has been eligible to take senior status since 2003, said he didn’t have plans to leave but wouldn’t rule out stepping down under a Democratic president.
“I wouldn’t say it’s a deal breaker,” the 82-year-old Kanne said. “The main reason I’m staying on and I didn’t take senior status earlier when it was available was I’m in relatively good health. It gives me a purpose and I like what I do and I think I can add something to the work of the court. So the fact of the political aspect of it might have something to do with it, too, but it's only part of it. I don’t say, ‘Oh, well, we’ve got a Democrat in the office now, and I’m never taking senior status because of that.’”
The Trump administration unsuccessfully tried to fill Kanne’s seat. At the start of 2018, Kanne agreed to take senior status based on an understanding that Trump would nominate Kanne’s former clerk Tom Fisher. But a few months later, Kanne’s name disappeared with no explanation from the judiciary’s public list of vacancies. Contacted by BuzzFeed News at the time, Kanne revealed that he was staying on because Fisher was no longer in the running, and the judge had no interest in leaving his seat open for just anyone; Politico later reported that Vice President Mike Pence had scuttled the nomination.
Kanne is one of 26 federal appeals judges nominated by Republican presidents who were eligible to take senior status over the past four years but have stayed in active service. The list includes 9th Circuit Judge Milan Smith Jr., a George W. Bush nominee. As a lawyer in private practice, Smith had clashed with Trump in a California land dispute case. According to an NPR report recounting the fight, Smith was quoted in a local newspaper calling Trump “pompous,” “arrogant,” and “like a big bag of wind”; Trump later reportedly called Smith “an obnoxious asshole.” Smith declined an interview request.
Another one of the newly senior-eligible Republican-appointed judges, 5th Circuit Judge Leslie Southwick, who was also confirmed under George W. Bush, wrote a law review article earlier this year about the recent history of federal court nominations. In that piece, he confirmed that he was approached about stepping down and knew another colleague was approached, too.
“My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I’ve seen it ... or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case,” Southwick wrote. “It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though.”
Asked to elaborate, he said in a phone interview that he simply wasn’t ready to give up the work of being an active judge. Asked if the politics of the president would affect his decision-making when he did feel ready to step down, he replied, “not particularly.”
“I would certainly be aware of who the president is and the kind of judges that person is selecting,” Southwick said. “But it wouldn’t weigh very heavily on me.”
Kanne said the prospect of a Democrat potentially winning the White House in 2020 didn’t change his mind about staying on after Fisher’s nomination fell through.
“I’m more, I guess, selfish in the sense that I enjoy what I do and I don’t have any real hobbies,” he said. ●
Paul McLeod contributed reporting to this story.