By Mattathias Schwartz and June Kim
Federal judges have historically held significant authority. However, with Congress recently unable to enact substantial legislation on matters like abortion, immigration, and gun rights, the judiciary has taken on a more prominent role in shaping the discourse on some of the nation’s most contentious issues.
As voters prepare to select the next president, they will also be deciding on two distinct interpretations of the federal judiciary. Federal judges are appointed by the president and confirmed by the Senate, and nearly all are granted lifetime tenure, influencing U.S. law for decades to come.
Both President Joe Biden and former President Donald Trump recognized the judiciary’s substantial impact on American society. Trump appointed a greater number of federal judges in his single term than any president since Jimmy Carter, with Biden following closely behind.
Currently, about half of all federal judges were appointed by one of the two most recent presidents. An analysis by The New York Times revealed significant ideological, demographic, and experiential differences between their selections.
The incoming president will likely begin their term with approximately 40 judgeships to fill. With anticipated vacancies from retirements, deaths, and resignations in the upcoming four years, successfully appointing new judges will heavily rely on Senate control.
The substantial success of Biden and Trump in judicial appointments stemmed from the fact that each held majority control of the Senate during their presidency. Although the Democrats narrowly control the Senate now, recent polling indicates Republicans might gain sufficient seats to take charge in January.
Should that occur, and if Vice President Kamala Harris ascends to the presidency, she is likely to encounter significant challenges in securing confirmation for her judicial nominees. Conversely, if Trump wins, he may achieve even greater success with a Republican-controlled Senate.
A more divided judiciary
The federal court system comprises three tiers: At the lowest level stand the nation’s 94 district courts, where 677 judges manage the majority of nearly 400,000 cases processed annually. Appeals from district court rulings are reviewed by 13 circuit courts, featuring a total of 179 judges. A mere fraction of cases ascend to the Supreme Court.
Most legal professionals contend that judges’ decisions on politically significant cases often reflect the party affiliation of the president who nominated them, although the judges themselves differ on this point.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice John Roberts once remarked. “What we have is a remarkable group of dedicated judges striving to perform their best.”
Yet, an analysis by The Times of data from Stanford University demonstrates that judges’ ideologies, as indicated by their campaign contributions prior to confirmation, correlate closely with the party of their nominating president. Furthermore, a change in Senate filibuster rules in 2013, initiated by then-Senate Majority Leader Harry Reid, may have led to a more polarized judiciary.
On average, Biden’s appointees are slightly more liberal than those nominated by previous Democratic presidents, whereas Trump’s appointments align more closely with those of earlier Republican presidents.
These ideological scores are derived from Stanford’s DIME database, which has tracked over half a billion political donations across local, state, and federal elections over the past 45 years, compiled by political scientists Adam Bonica and Maya Sen.
This database assesses judges’ ideologies using records of their campaign contributions made prior to their judicial confirmation, as they are prohibited from further contributions thereafter.
This scoring does not reflect the judges’ actual rulings, which are more challenging to assess ideologically due to the minimal direct impact of lower court cases on political issues. Nonetheless, the database creators assert that the scores serve as reliable predictors of judges’ ideological tendencies post-confirmation.
“Nowadays, it’s almost invariably the case that Republican presidents appoint conservative judges, while Democratic presidents appoint liberal judges,” noted Bonica, the database manager. “In the 1970s and 1980s, there was much more ideological crossover, but this has gradually shifted.”
Variations in race, gender, and background
Harris once expressed her vision for a judiciary that “reflects America.” As vice president, she advocated for Biden to appoint Ketanji Brown Jackson to a Supreme Court position, making Jackson the first Black woman to serve in that capacity.
An analysis by The Times reveals that nearly two-thirds of Biden’s judicial nominees were women, and the group as a whole was significantly more diverse racially compared to Trump’s nominees. Biden put forth 38 Black women for judicial appointments who were confirmed by the Senate — a number greater than the combined total from the Trump, Obama, and George W. Bush administrations.
In contrast, Trump’s judicial nominees were predominantly white and male. He has not directly discussed the race or gender composition of his appointees, but a senior campaign aide, Brian Hughes, stated that a second Trump term would yield more “constitutionalist judges who interpret the law as it is written.”
The distinctions extend beyond race and gender. The data indicates that Trump favored judicial nominees with military backgrounds. Biden, conversely, prioritized jurists with experience representing clients unable to afford legal counsel, nominating nearly eight times more such candidates than Trump.
Judicial power dynamics
If judges’ ideologies align with the party of the president, which party currently exerts greater control over the courts? In the case of the Supreme Court, it is evident: Trump’s three appointees have secured Republicans a 6-3 majority. Richard Nixon was the last president to achieve such a number of appointments to the Supreme Court within a single term.
At lower levels, party control fluctuates by region. The White House typically engages with senators from a nominee’s home state before presenting that nominee’s name to the Senate for confirmation. This practice amplifies the weight of home-state senators’ opinions, granting legislators from larger states, where more judges are needed, like California and Texas, disproportionate influence over the judiciary.
Trump’s achievements in appointing judges to the 5th Circuit, which oversees nine district courts across Texas, Mississippi, and Louisiana, are particularly significant. This circuit includes numerous “single-judge divisions,” where one judge presides over nearly all cases brought in a specific area, offering plaintiffs insight into who might adjudicate their case.
These single-judge divisions have rendered some of the most significant rulings in recent times. In Texas, Judge Matthew J. Kacsmaryk, a Trump appointee overseeing all federal cases in 26 counties, issued a preliminary order last year that sought to limit access to the abortion medication mifepristone; this ruling was later overturned by the Supreme Court in June.
In the last few decades, several of the nation’s more progressive rulings have emerged from the 9th Circuit, which encompasses California and eight other Western states. A district judge in Hawaii, Derrick K. Watson, was the one who blocked Trump’s travel ban against individuals from predominantly Muslim nations in 2017, a judgment later upheld by the 9th Circuit.
A legacy that endures
Current and anticipated future judicial vacancies are distributed nationwide, with the highest numbers found in California (five), Texas (five), Missouri, and Louisiana (four each).
If elected, Harris would encounter a disproportionate number of vacancies to fill in states with Republican senators, including several seats that have remained unoccupied for years and presented some of the most significant challenges for Biden.
The occurrences of deaths, retirements, and appointing judges opting for senior status, a semi-retirement form, are expected to create many additional vacancies for the next president. Precisely how many is challenging to predict: Some judges retire at relatively young ages, while others remain active well into their 80s and 90s.
New judicial appointments affect the legal framework not only through their rulings but also as lower-court judgeships
