February 16, 2023

President Biden's First 100 Judges

Russ Feingold President

This week, the Senate confirmed President Biden’s 100th federal judge. There is much to celebrate about this milestone and the 100 judges (1 Supreme Court Justice, 30 circuit judges, and 69 district court judges) now sitting on the bench. The 100 confirmed judges represent unprecedented diversity for the federal bench.

They include:
• 76 women
• 68 people of color
• 49 women of color

For comparison, of President Trump’s first 100 judges:
• Only 24 were women
• Only 11 were people of color
• Only 3 were women of color.

President Biden has also prioritized professional diversity. One example, 27 of his first 100 confirmed judges are former public defenders. We still have a long way to go to achieve a judiciary that reflects the diversity and experiences of the public it serves, but these 100 judges have certainly moved us closer.

To top it off, President Biden achieved this milestone sooner than either President Trump, who didn’t have his 100th judge confirmed until May 2, 2019, or President Obama, whose 100th judge was confirmed on October 3, 2011.

However, as we celebrate these 100 judges, we – and the Senate – need to be cognizant of the challenges ahead. If President Biden wants to exceed Trump’s 234 confirmed judges, the White House and the Senate need to be striving for at least 100 confirmations this year, as the Senate will almost certainly spend considerably less time in Washington next year due to the election cycle.

The tough news: 100 confirmations is more than the Senate confirmed in the past two years. The good news: 100 confirmations have been achieved in a single year before. It was 2019, when the Senate confirmed 21 judges in July and 23 judges in December. So, we know what is possible in a single month and in a year when the Senate consistently prioritizes judges.

We need the 118th Senate to pick up its pace. It didn’t confirm its first judge until February 9th. While this week was excellent with 7 confirmations (bringing us to 105 total), the Senate is again going on vacation next week. Confirming judges is time consuming. The Senate needs to devote more time to judges.

The other big challenge is geography. With these first 100 confirmed judges, the White House prioritized district court vacancies in states with two Democratic Senators. This meant there was little to no chance of obstruction by home state Senators refusing to return the blue slip on a nominee. However, as a result, the vacancy map now disproportionately includes vacancies in states with one or two Republican Senators. This makes the blue slip ripe for obstruction where a home state senator can essentially veto a nomination by refusing to return their blue slip to the Senate Judiciary Committee.

There is another reason this is so problematic. The vacancy map is dominated by vacancies in the South (TX, LA, & FL in particular). Reproductive rights, voting rights, and LGBTQ+ rights are just a few of the civil rights under attack in these diverse states. We cannot afford to have two separate judicial systems at the district court level based on where a person lives. It is imperative that the Biden administration nominate, and the Senate confirm diverse, qualified judges to these seats who reflect the public they serve and who will uphold the rule of law and vindicate our civil rights.

We applaud President Biden and the Senate for these first 100 confirmations, while simultaneously imploring the Senate to pick up the pace. If the Senate wants to prove it’s serious about judges, it should eliminate blue slips, reduce the required floor time for circuit court nominees, and allow for the simultaneous consideration of nominees. We’ve been saying this, and we’ll continue to say it - because courts matter.

Confirmation Process, Federal courts, Importance of the Courts, Judicial Nominations