Biden’s Lower Court Appointments Are a Rare Dose of Good News

Barring the death or retirement of a sitting justice, President Joe Biden won’t get another opportunity to appoint another person to the Supreme Court for the duration of his first term, and perhaps his second, if he is reelected. 

The average tenure of justices who have left the high court since 1970 is 25.3 years. Of the nine sitting members of the court today, only Clarence Thomas, who was confirmed in 1991, exceeds this threshold, and he has shown no interest in stepping down. Nor have any of the other sitting members expressed an intention to leave the bench. Indeed, Trump’s three Supreme Court nominees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are judicial spring chickens, with Kavanaugh the senior member of the group at 56. They can all be expected to have long careers.   

This means that unless the Democrats succeed in expanding the size of the court, the current court is the one we are likely to have for the foreseeable future.  

Fortunately, the lower federal courts — the 94 district trial courts and the 13 U.S. Courts of Appeals — are, with some notable exceptions, such as the 5^th Circuit, more politically diverse and less ideologically doctrinaire. And there is cause for optimism that the lower courts will become even more diverse in the near future.

In his first two years in office, President Biden nominated, and the Senate confirmed, 97 judges — one Supreme Court Justice (Kentanj Brown Jackson), 68 district court judges and 28 appellate judges. This compares to the 83 judges appointed by Trump in his first two years in office. 

Biden’s judicial appointments have also been far more diverse in terms of race and gender than his predecessor’s. Just five of Biden’s judicial nominees to-date have been white men. By contrast, over his full four years in office, Trump nominated 147 white men out of a total of 231 nominations. 

With a new working majority in the Senate, Biden can be expected to continue the trend toward diversity in the lower courts, even if, sadly, he may never equal Trump’s record of placing three on the most powerful judicial body in the land. 

You can read more about Biden’s judicial appointments in Bloomberg and The Guardian.