Senate confirms Biden’s 100th judge, but Democrats need vacancies to match Trump
Kaelan Deese
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The Democratic-led Senate voted on Monday to confirm President Joe Biden‘s 100th judicial nominee, a milestone that builds on his record of naming the most diverse slate of candidates to the bench in a president’s history.
Through the help of Senate Majority Leader Chuck Schumer (D-NY) and the Democrats’ 51-49 Senate majority, Biden has followed through on his pledge to reshape the federal judiciary with judges who have diversity both in race and ethnicity, as well as professional experience. The Senate voted 54-45 to confirm Gina Mendez-Miro, a district court judge in Puerto Rico, marking the president’s 100th confirmed judge.
“I’m especially proud that the nominees I have put forward — and the Senate has confirmed — represent the diversity that is one of our best assets as a nation, and that our shared work has broken so many barriers in just two years,” Biden said Tuesday, thanking his fellow Democrats, including Schumer and Senate Judiciary Committee Chairman Dick Durbin (D-IL), for their help in the process.
With Mendez-Miro’s confirmation, she becomes Biden’s 69th district court judge, which accompanies the Senate’s approval of his 30 appeals court judges and last year’s confirmation of Supreme Court Justice Ketanji Brown Jackson. At this juncture, Biden is outpacing former President Donald Trump, who secured 85 judges by this point in his presidency with the help of a Republican-led Senate.
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“Our effort to bring balance to the courts has been one of this Senate’s truly great successes,” Durbin wrote in a statement Tuesday.
Trump managed to secure a total of 234 judges over his four-year term in office, including three Supreme Court justices, 54 judges for circuit courts, and 174 judges for district courts.
But both judiciary experts and Democrats aligned with the president’s goals agree that Biden will need to see more judges retire in order to match Trump’s record. There are presently 91 vacancies on federal courts in the United States, according to U.S. court records.
Carl Tobias, a law professor at the University of Richmond, told the Washington Examiner he believes Biden needs more vacancies in “blue states but also in red states.” However, he underscored that Biden’s 100th confirmation is “another milestone and an important one.”
“I think Biden is reluctant to push people in a way that maybe McConnell and Trump are not,” Tobias said, noting Sen. Lindsey Graham (R-SC) previously called on older Republican-appointees judges to consider retiring while the GOP maintained a majority in the Senate with then-Majority Leader Mitch McConnell (R-KY).
While some Republican-appointed judges might be reluctant to step down while Democrats control the Senate, Tobias noted there are some exceptions to that pattern, citing Monday’s confirmation of Cindy Chung to the U.S. Court of Appeals for the 3rd Circuit, the first Asian American to serve on the court who will replace Judge Brooks Smith, an appointee of former President George W. Bush.
Although Schumer recently said the 51-49 Democratic majority in the Senate “made it easier” to reach Biden’s 100th confirmation, he acknowledged that Biden will require more judges to retire from active service over the next two years to match Trump’s record.
“There will be a bunch,” Schumer told NBC. “If the pattern works out, we could get there.”
Tobias said that “there’s cause for optimism” for Biden to outpace Trump if the Democrats and the White House work together, citing Durbin’s schedule to hold confirmation hearings for Biden’s nominees every two weeks.
But other court watchers such as Russell Wheeler, a governance expert at the Brookings Institution, have underscored that Biden faces uncertainty to outpace Trump, given the apparent pattern of GOP-appointed judges retaining their post while Democrats are in control.
Referring to appellate court nominees, Wheeler wrote last month that in “Biden’s first two years, four of his 28 appointees replaced Republican appointees. In Trump’s first two years, 11 of his 30 appointees replaced Democratic appointees.”
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“Republican appointees created both vacancies that Biden inherited (one by death), but since his inauguration, only five Republican appointees have created vacancies, versus 31 Democratic appointees,” Wheeler wrote on Jan. 30. Biden has since gained two appellate confirmations, including DeAndrea Benjamin to the U.S. Court of Appeals for the 4th Circuit and Monday’s confirmation of Chung.
The president’s current pace is in lockstep with former President George W. Bush’s total of 100 confirmations by Feb. 14 of their respective first terms in office but lags behind former President Bill Clinton’s total of 128 confirmations by the same date, according to the Heritage Foundation’s judicial tracker.