An increasing number of federal judges have announced their departure in the weeks since President biden
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Currently, there are 57 vacancies in the federal district and courts of appeal and another 20 vacancies that will be vacant in the coming months. At least 25 of those vacancies were announced after Biden took office on January 20.
The dismissal group includes Emmet Sullivan, who was appointed to the U.S. District Court for the District of Columbia by former President Clinton in 1994. Sullivan presided over several high-profile cases during the Trump era, including the Michael Flynn lawsuit on charges that the former White House national security adviser lied to the FBI about his conversations with a Russian diplomat during Trump’s transition period.
Another Clinton-appointed judge, Robert Katzmann, of the influential 2nd Circuit Court of Appeals, announced on January 21 that he would leave his seat. Katzmann has also been involved in several Trump-related cases. Last year, he was on a panel of three judges who supported the Manhattan district attorney’s office in a lawsuit filed by Trump to block the prosecutor’s subpoena for his tax returns.
Both Katzmann and Sullivan will assume senior status, which allows them to remain as judges with a lighter case load, leaving vacancies for Biden to fill during the Senate confirmation process.
“I think he already has an incredible opportunity to improve the cause of justice, who has a tremendous opportunity to make his mark by placing notable jurists who are demographically and professionally diverse and with a demonstrated commitment to equality of justice in this country, ”said Daniel Goldberg, legal director of the progressive group Alliance for Justice.
But despite the wave of new vacant seats, Biden will face an uphill battle to match Trump’s success in court, in part because he is inheriting significantly fewer seats than his predecessor and must navigate the delicate balance of a 50-50 Senate .
It is not uncommon for federal judges to synchronize their exits with changing administrations to ensure that their substitutes are chosen by a president who will choose someone ideologically similar. But Russell Wheeler, a Brookings Institution scholar who studies the judiciary, said he believed the number of vacancies opened in the last few months of the Trump administration and in Biden’s early days is relatively low.
“I was surprised by the number of judges, including Republican nominees, who have not taken on senior status compared to previous years,” said Wheeler. “In the twilight of the Obama administration and the twilight of the Bush administration, you usually see people start running for exits when it’s pretty clear what the presidential outcome will be, or in the case of Republicans, trying to get the oldest status done in the hope of that the republican president can nominate his successor. “
According to Wheeler’s data, Trump has been one of the most prolific presidents of the modern era when it comes to court confirmations, filling federal benches with young, conservative judges at a rapid pace.
In four years, Trump has successfully appointed 226 judges to the federal bench, including three Supreme Court judges, 54 appellate court judges and 174 district court judges, according to the Pew Research Center.
Wheeler found that Trump is second only to former President Carter in terms of the total number of judicial appointments in the first four years of any recent president. President Reagan, who has appointed four Supreme Court justices in eight years, is the only recent president who has left a bigger footprint in the upper court.
Wheeler thinks it will be harder for Biden to match Trump’s success in forming the judiciary. On the one hand, he argues, Biden is inheriting fewer high-profile vacancies.
When Trump took office in January 2017, there were 17 empty seats in the country’s powerful appellate courts, which are just below the Supreme Court. There are now seven current and future vacancies in the circuit court that Biden will have the opportunity to fill, not including the DC Circuit vacancy that will be opened if Merrick Garland
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Wheeler also noted that Trump and Senate Republicans have made judicial confirmations one of their top priorities, which Biden and his colleagues in the upper house may not be able to repeat due to the new government’s ambitious legislative agenda.
“I didn’t expect to see the courts revolutionized after four years and, of course, if the Republicans resume the Senate in 2022, the situation will be even more dire,” said Wheeler.
But progressives who are pressing the new government to focus on the judiciary argue that the fate of Biden’s policy plans will depend to a large extent on the judges who hear the legal challenges that are sure to follow.
“The advancement of so many political issues will not matter if there are no judges on the federal bench who will give adequate effect to critical legislation,” said Goldberg. “And whatever legislation is passed, be it civil rights legislation, legislation that protects workers, we need federal judges, the back-end, ensuring that these statutes are duly complied with and applied as intended by Congress.”
To that end, Goldberg said, Senate Democrats appear to be taking the judiciary more seriously than in previous years.
“Of course, they are ready to prioritize this issue like never before,” he said.