Wave of departures leaves federal court seats for Biden to fill

A growing number of federal judges have announced their departures in the weeks since President Biden was sworn in, giving the new administration an early opportunity to start making inroads into former President Trump’s success at filling the judiciary with conservative judges.

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 those vacancies were announced after Biden’s inauguration on Jan. 20.

The group of departures 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 prosecution of Michael Flynn on charges that the former White House national security adviser had 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 Jan. 21 that he would be leaving his seat. Katzmann was also involved in a number of Trump-related cases. Last year, he was part of a three-judge panel that sided with the Manhattan district attorney’s office in a lawsuit Trump filed seeking to block the prosecutor’s subpoena for his tax returns.

Both Katzmann and Sullivan will be taking senior status, which allows them to stay on as judges with a lighter case load while leaving seats for Biden to fill through the Senate confirmation process.

“I think that he already, right off the bat, has an incredible opportunity to improve the cause of justice, that he has a tremendous opportunity to leave his mark by getting on the bench remarkable jurists who are both demographically and professionally diverse and with a demonstrated commitment to equal justice in this country,” said Daniel Goldberg, legal director of the progressive group Alliance for Justice.

But despite the wave of newly vacant seats, Biden will face an uphill battle to match Trump’s success on the courts, partly because he is inheriting significantly fewer vacancies than his predecessor and must navigate the delicate balance of a 50-50 Senate.

It’s not unusual for federal judges to time their exits with the changing of administrations in order to ensure their replacements will be picked by a president who will choose someone ideologically similar. But Russell Wheeler, a scholar at the Brookings Institution who studies the judiciary, said he believes the number of vacancies that have opened up in the final months of Trump’s administration and the early days of Biden’s is relatively low.

“I was surprised by the number of judges, including Republican appointees, who didn’t take senior status compared to earlier years,” Wheeler said. “In the twilight of the Obama administration and the twilight of the Bush administration, usually you see people begin to rush for the exits once it’s pretty clear what the presidential outcome will be, or in the case of the Republicans, try to get the senior status done in the hopes that the Republican president can appoint their successor.”

According to Wheeler’s data, Trump has been one of the most prolific presidents in the modern era when it comes to judicial confirmations, filling the federal benches with young, conservative judges at a rapid clip.

In four years, Trump successfully appointed 226 judges to the federal bench, including three Supreme Court justices, 54 appeals court judges and 174 district court judges, according to the Pew Research Center.

Wheeler has found that Trump lags behind only former President Carter in terms of the total number of judicial appointments in any recent president’s first four years. President Reagan, who appointed four Supreme Court justices in eight years, is the only recent president who left a larger footprint on the high court.

Wheeler thinks it will be harder for Biden to match Trump’s success in shaping the judiciary. For one, he argues, Biden is inheriting fewer high-profile vacancies.

When Trump came into office in January 2017, there were 17 empty seats on the nation’s powerful circuit courts of appeals, which sit just below the Supreme Court. There are now seven current and future circuit court vacancies that Biden will have an opportunity to fill, not including the D.C. Circuit seat that will open up if Merrick Garland is confirmed as attorney general.

Wheeler also noted that Trump and Senate Republicans made judicial confirmations one of their biggest priorities, which Biden and his colleagues in the upper chamber may not be able to repeat given the new administration’s ambitious legislative agenda.

“I wouldn’t expect to see the courts revolutionized after four years, and of course, if the Republicans take back the Senate in 2022, it’s just going to get more dire,” Wheeler said.

But progressives who are pushing the new administration to focus on the judiciary argue that the fate of Biden’s policy plans will depend largely on the judges who hear the legal challenges that are sure to follow.

“The advancement of so many of the policy issues will not matter if there are not judges on the federal bench who will give proper effect to the critical legislation,” Goldberg said. “And whatever legislation has passed, whether civil rights legislation, legislation protecting workers, we need federal judges, the back end, making sure that those statutes are properly enforced and applied as intended by Congress.”

To that end, Goldberg said, Senate Democrats seem to be taking the judiciary more seriously than in years past.

“It’s clear that they are ready to prioritize this issue like never before,” he said.