Editor’s Note: Jeffrey Toobin is chief legal analyst for CNN and the author of “The Nine” and “The Oath.” The opinions expressed in this commentary are his own. View more opinion on CNN.
As President Biden struggles through the roughest patch of his presidency yet – with his poll numbers in the doldrums and the cornerstone of his Build Back Better legislation in peril – he can look back at one unalloyed success in his first year. The Senate has confirmed a record number of his nominees to the federal judiciary – the most of any president at this stage in 40 years – and at a time when that achievement matters more than ever.
In its final days in session for the year, the Senate confirmed 10 district judges, giving Biden a total of 40 confirmations, a tie with Ronald Reagan’s record. By comparison, the Senate confirmed 18 circuit and district court judges in President Donald Trump’s first year in office, and 12 in President Barack Obama’s first year. Biden’s achievement is especially important at a time when partisanship in the judiciary is nearly as pervasive as it is in the political branches.
Republicans learned this lesson before Democrats did. When Mitch McConnell, the Kentucky Republican, was Senate majority leader during the Trump years, he put judicial confirmations at the top of his agenda. Thanks to McConnell, the Senate confirmed 54 appellate judges during Trump’s one term, just one fewer than Obama appointed in his two terms.
In overall numbers, according to Pew Research Center, Trump’s total of 226 in his single term is below the totals of recent two-term presidents, including Obama (320), George W. Bush (322) and Bill Clinton (367). But according to a Washington Post analysis, Trump appointed the youngest group of judges since at least the start of the 20th century. The average age of his appellate court judges was 47, about five years younger than Obama’s appellate judges. Since all federal judges enjoy life tenure, Trump created a legacy that would be difficult to reverse.
But Biden – with the crucial assistance of Chuck Schumer, the current Senate majority leader, and Richard Durbin, the chairman of the Judiciary Committee – has fought back. While the Senate has struggled to move much of Biden’s legislative agenda, Schumer has filled the time with confirmations, and his fellow Democrats (including the otherwise resistant Joe Manchin and Krysten Sinema) have confirmed every one. Biden’s judges so far are generally younger and more diverse than even Obama’s were. For example, according to figures compiled by the American Constitution Society, about 80 percent of Biden’s judicial nominees have been women, compared to 42 percent for Obama and 24 percent for Trump. About 36 percent of Obama’s nominees were members of minority groups, compared to about 67 percent for Biden, and 16 percent for Trump. And Biden has drawn from a broader pool of lawyers, too. Obama chose a great many former prosecutors for the bench, Biden has looked to defense lawyers as well. Halfway into his first year, Biden’s legacy in this regard is formidable already.
Chief Justice John G. Roberts, Jr. has famously asserted that our nation’s judges are independent of politics and “dedicated” to nonpartisanship. “We do not have Obama judges or Trump judges,” he said. But in recent years the difference between Democratic and Republican judicial appointees has been vast and growing. This is not because the judges are unethical or partisan hacks (at least most of them), but rather because judicial philosophy and political orientation have rarely been as closely aligned as they are today. Democrats and Republicans simply have different and profound disagreements about what the Constitution means.
Consider several recent legal controversies. In October, Robert Pitman, an Obama appointee to the federal district court in Texas, ruled that the state’s draconian anti-abortion rights law known as SB 8 was unconstitutional. Republican-appointed judges overturned him. Similarly, four Democratic appointees have ruled against Trump’s effort to prevent Congress from gaining access to executive branch records in the investigation of the January 6 riot at the Capitol: The district court ruling was by an Obama appointee, and it was affirmed by a DC Circuit panel of two Obama judges and one Biden judge. Republican-appointed judges have, in turn, stymied Democratic priorities, as when a three-judge panel of the Fifth Circuit rejected the Biden administration’s vaccine mandate for large employers. The judges were one Reagan and two Trump appointees.
Of course, one Trump record that Biden cannot hope to equal involves the most important federal court of all. McConnell’s most consequential acts as majority leader allowed Trump to fill three seats on the Supreme Court. McConnell forbade consideration of Merrick Garland as a replacement for Antonin Scalia during the last year of Obama’s presidency, paving the way for Trump to nominate Neil Gorsuch in his inaugural year. He then steered Brett Kavanaugh through a tumultuous confirmation and then jammed through the confirmation of Amy Coney Barrett in the waning days of Trump’s presidency.
The Supreme Court is now the most partisan of federal courts, one with a clear conservative majority on such issues as abortion, affirmative action, gun safety and many others. Even if Stephen Breyer, the 83-year-old liberal, retires in the next year and Biden replaces him, the current President cannot reasonably hope to change that lineup in the near future.
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And Biden’s first-term record of judicial accomplishment stands on a fragile base as well. If the Democrats lose even a single Senate seat in the 2022 midterms (as historical trends suggest they will), McConnell will again be majority leader and in a position to bring judicial confirmations to a halt. Certainly, McConnell will not allow Biden to fill a seat on the Supreme Court. That means Biden, along with Schumer and Durbin, will have to keep up the same pace of appointing and confirming judges in the next year if they want a legacy that even Mitch McConnell can’t undo.