Senate Confirms 23 BIDEN-nominated Judges Since the Election (UPDATED)

                                                           FEDERAL JUDICIAL APPOINTMENTS RECORD

                                                                                                                                                                                                                                                                                                                            BIDEN

                                       TRUMP-45        BIDEN (11/5)       BIDEN (01/20/2025)* NOMINEES

Supreme Court of the U.S.:             3                            1                                  1  ( +2)

U.S. Courts of Appeals:                 54                          44                                45  ( +9)                   0

U.S. District Courts:                    174                        166                              187  (-13)                   0

U.S. Court of Int’l Trade:                3                            2                                  2  ( +1)

ARTICLE III TOTAL:             234                        213                              235  ( -1)                    0

Article I Specialty Courts:             26                          16                                17  ( +9)

Article IV Territorial Courts:           1                            1                                  1  (   0)

ARTICLE I + IV COURTS:       27                          17                                18   (+9)

 

ALL JUDICIAL POSITIONS: 261                        230                              253  (+8)                   0

In the weeks since the November 5, 2024 election, the U.S. Senate confirmed twenty-three Biden nominees for federal judicial appointments. This includes one Article III appellate judge, twenty-one Article III district court judges, and one Article I judge. (Interestingly, after the November 5, 2024 election, Biden successfully nominated two individuals to federal district court positions, and both those nominees were subsequently confirmed.) President Biden’s number of lame duck appointments exceeded the controversial 14 “midnight” appointments made by President John Adams. Adams’ record of 14 midnight appointments (to then newly created judicial posts) is now being used as a how-to guide. Such numbers as Biden appointed as a post-election lame duck president are not entirely new: the Senate confirmed some nineteen Trump-45 nominees during Trump’s lame duck period, including fourteen Article III judges and five Article I judges.

There are (circa) 870 authorized Article III judicial posts. (I am not counting the Article I judicial positions in the United States District Courts for the District of the Virgin Islands, for the District of Guam, and for the District of Northern Mariana Islands.) Both Trump-45 and Biden have appointed more than 25% of the number of authorized Article III judicial posts. More than half the Article III judicial positions were filled during the last 8 years!

At this juncture, circa, January 20, 2025, there are 45 federal judicial vacancies** to Article III courts. I am including 3 future vacancies which will take effect only after Biden’s term has ended. I am also including 2 federal judicial positions which became vacant on (or after) January 2, 2025. IE: [1] Judge Hanen, S.D. Texas; and, [2] Judge Coogler, N.D. Alabama.  There are 7 Biden judicial nominations pending before the U.S. Senate or before a Senate committee.

The lame duck U.S. Senate and Joe Biden, the lame duck U.S. President, might now push forward, and so it is possible that over the course of the next several days and weeks Biden’s record might (further) improve and equal (or, possibly, even surpass) Trump-45’s record for judicial appointments. There is also the less likely possibility of Biden’s submitting additional and entirely new nominees—even at this late juncture—for extant or newly arisen judicial vacancies. Interestingly, after the November 5, 2024 election, Biden nominated two individuals to federal district court positions, and both those nominees were subsequently confirmed. 

Currently, the Senate is NOT scheduled to meet during January 2025 and prior to noon on January 3, 2025, when the new Congress convenes. Moreover, as of January 3, 2025, it appears that the Senate is not scheduled to resume business until the new Congress convenes. See <https://www.senate.gov/legislative/resources/pdf/2024_calendar.pdf>. In theory, the Senate could change its announced schedule and meet during January and prior to noon on January 3, 2025 while the Democrats still have a Senate majority. However, at this juncture, it does not appear that the Senate will pursue any such option.

See <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies>, <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/future-judicial-vacancies>, <https://www.senate.gov/legislative/nominations_new.htm>. See generally ‘List of federal judges appointed by Joe Biden,’ Wikipedia, <https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Joe_Biden>. 

 

Seth Barrett Tillman, ‘Senate Confirms 23 BIDEN-nominated Judges Since the Election (UPDATED),’ New Reform Club (Nov. 7, 2024, 6:56 AM, UPDATED Jan. 20, 2025), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>; 

Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM, UPDATED Jan. 20, 2025), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>; 

Note: the U.S. Court of International Trade is an Article III court.

*I am including positions where the Senate has confirmed a Biden nominee, but the President has not formally appointed that person. I expect the appointments will be made imminently, and, in all likelihood, the candidate will “accept” the appointment while Biden is still President. If asked, I would advise the appointee to “accept” his or her appointment during the presidential term of the president who made the appointment. See generally Marbury v. Madison. 

**As vacancies, I am counting current vacancies, and also future vacancies which will take effect on or prior to January 20, 2025 (that is, while Biden remains President) and also future vacancies which will take effect after January 20, 2025. If Biden can shepherd his 7 pending nominees through during the remainder of the Senate’s session and his presidential term, then Biden will have appointed roughly the same number of federal Justices/judges Trump-45 appointed. It seems that in order for Biden to surpass Trump-45’s record in regard to all federal judicial appointments, Biden would have to nominate further candidates to extant or newly arisen federal judicial vacancies, and Biden would have to seek confirmation (post-January 3, 2025) from a majority Republican Senate. It is conceivable that some further judicial positions could become vacant in the days remaining to Biden’s administration. Likewise, it is also possible that some retirements, resignations, and applications for senior status in regard to federal judicial positions will be retracted or rescinded in these last days remaining to the Biden administration. See generally Seth Barrett Tillman, ‘Judge Wynn’s Resignation,’ New Reform Club (Dec. 15, 2024, 3:05 AM), <https://reformclub.blogspot.com/2024/12/judge-wynns-resignation.html>.