A growing number of federal judges announced their departure in the weeks following President Biden
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There are currently 57 vacancies in the federal district and appellate courts and another 20 seats that will become vacant in the coming months. At least 25 of the vacancies were announced after Biden’s inauguration on January 20.
The group departure includes Emmet Sullivan, who was appointed to the Columbia District Court by former President Clinton in 1994. Sullivan chaired several high-profile cases during the Trump era, including the prosecution of Michael Flynn on charges that the former White House national security adviser lied to the FBI about his talks with a Russian diplomat during Trump’s transition.
Another judge appointed by Clinton, Robert Katzmann of the influential 2nd Circuit Court of Appeals, announced on January 21 that he was leaving his seat. Katzmann has also been involved in a number of Trump-related cases. Last year, he was part of a three-judge panel that joined him in the Manhattan district attorney’s office in a lawsuit Trump filed to block the prosecutor’s subpoena for his tax returns.
Both Katzmann and Sullivan will take on senior status, enabling them to continue as judges with a lighter case, while Biden leaves seats for Biden to fill through the Senate confirmation process.
‘I think he already has, right off the bat, an incredible opportunity to improve the case of justice, that he has a tremendous opportunity to leave his mark by getting remarkable lawyers on the bench who are both demographic and professionally diverse and shown with a commitment to equal justice in this country, ”says Daniel Goldberg, legal director of the progressive group Alliance for Justice.
But despite the spate of new vacancies, Biden will face an uphill battle to match Trump’s success on the courts, in part because he inherits significantly fewer vacancies than his predecessor and has to navigate the fine balance of a 50-50 Senate.
It is not uncommon for federal judges to determine their retirement by changing administrations to ensure their replacements are elected by a president who will elect someone ideologically similar. But Russell Wheeler, a scholar at the Brookings Institution who studies the judiciary, said he believes the number of vacancies opened in the last months of Trump’s administration and Biden’s early days is relatively low.
“I was amazed at the number of judges, including Republican appointments, who did not gain senior status compared to previous years,” Wheeler said. ‘In the twilight of the Obama administration and the twilight of the Bush administration, you usually see people start rushing to the exits as soon as it’s pretty clear what the presidential outcome will be, or in the case of Republicans, trying to to get the senior. status done in the hope that the Republican president could appoint their successor. ”
According to Wheeler’s data, Trump was one of the most productive presidents in the modern era when it comes to judicial confirmations, and the Federal Reserve quickly filled with young, conservative judges.
According to the Pew Research Center, Trump successfully appointed 226 judges to the federal bank within four years, including three Supreme Court justices, 54 appeals court judges and 174 district court judges.
Wheeler found that Trump is only lagging behind 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 to have left a bigger footprint in the Supreme Court.
Wheeler believes it will be more difficult for Biden to compare Trump’s success with the formation of the judiciary. First, he claims, Biden inherits less high-profile vacancies.
When Trump took office in January 2017, there were 17 vacant seats in the country’s powerful appellate court, which sits just below the Supreme Court. There are now seven current and future vacancies in the circuit court that will give Biden the opportunity to fill, not the DC Circuit seat that will open if the Merrick Garland
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Wheeler also noted that the Republicans of Trump and Senate have made judicial confirmations one of their top priorities, which Biden and his colleagues in the upper chamber may not be able to repeat, given the ambitious legislative agenda of the new government.
“I would not expect the courts to see a revolution after four years, and of course, if the Republicans take back the Senate in 2022, it will only get worse,” Wheeler said.
But progressive figures urging the new government to concentrate on the judiciary argue that the fate of Biden’s policy plans largely depends on the judges hearing the legal challenges that will certainly follow.
“Promoting so many of the policy issues will not matter if there are no judges on the federal bank who will execute the critical legislation properly,” Goldberg said. “And regardless of legislation that has been passed, whether it is civil rights legislation, or legislation that protects workers, we need federal judges, the back end must ensure that the legislation is properly enforced and enforced as intended by Congress.”
For that, Goldberg said, it looks like the Democrats of the Senate are taking the judiciary more seriously than in the past.
“It is clear that they are ready to prioritize this issue like never before,” he said.