President Joe Biden will finish his term with more lifetime appointed federal judges than his predecessor after securing 235 last week, just one more than President-elect Donald Trump‘s first-term total.
But while the number may suggest comparable influence, Biden’s judicial legacy has been less transformative than Trump’s reshaping of the federal judiciary for several key reasons. He objectively failed to match Trump’s 54 appellate judge confirmations, and the Supreme Court remains a strong 6-3 Republican-appointed majority cemented by Trump.
Where Biden comes up short in top court confirmations, his crowning achievement will be his commitment to prioritizing diversity in demographics and professional backgrounds, with nearly 60% of his confirmed judges being women, and 60% are people of color, which tops the diversity records of any former president in U.S. history.
The Biden administration appointed more public defenders, civil rights attorneys, and labor lawyers than previous presidents, moving away from the traditional dominance of prosecutors and corporate lawyers.
“And no matter who they are or where they come from, all of these appointees are supremely qualified to serve in the role of Judge, and remain committed to the rule of law and the Constitution,” Biden said in a statement on Friday after the confirmation of Serena Raquel Murillo, a Hispanic nominee and former district attorney, to the U.S. District Court for the Central District of California.
Biden leaves shallow mark on Supreme Court
Another victory for Biden was fulfilling his campaign promise to appoint the first black woman to the Supreme Court, Justice Ketanji Brown Jackson. However, Jackson’s appointment replaced Justice Stephen Breyer, maintaining the Supreme Court’s ideological balance rather than altering it.
Jackson’s presence on the high court has not gone without some changes to the overall dynamic of the other eight justices. According to data from Adam Feldman, founder of the Empirical SCOTUS blog, Jackson averages the highest rate of speaking time per term, in minutes, than any of her colleagues.
“Even though Justice Jackson’s amount of speech has held relatively constant, she clearly spends the most time speaking of the justices and has done so since she joined the Court in 2020,” Feldman wrote.
Additionally, Jackson has proven to be an unpredictable vote on some decisions, such as when she sided with several Republican-appointed justices to limit the scope of an obstruction statute against Jan. 6 defendants, a move that some experts attributed to her status as a public defender in her earlier career.
But when weighing the significance of her appointment to a high court with a Republican-appointed supermajority, Jackson’s confirmation did not move the needle.
Trump’s replacement of Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett in the final months of his first term shifted the Supreme Court decisively rightward.
Under Biden, the 6-3 Republican-appointed supermajority reshaped constitutional law on issues such as abortion and environmental regulations and outlawing affirmative action considerations at colleges and universities, a pattern that has begun to trickle into the corporate world as well.
Biden loses on appellate court judges
Biden’s record in reshaping lower courts is similarly mixed. While he gained only slightly more district court nominees, he was not able to match Trump’s appellate court number by nine seats, only seating 45 by the final days of his current term.
Trump flipped three federal appellate courts — the 3rd, 11th, and 2nd Circuits — to Republican majorities while also making substantial inroads in the 9th Circuit, making around six of 13 appellate courts more strongly equipped with judges who have a more textualist jurisdiction, that is, adhering closely to how the framers conjured the Constitution and its subsequent amendments.
For Biden, he managed to flip only the 2nd Circuit back to a Democratic majority, with limited influence on others.
Sen. Richard Blumenthal (D-CT), a Democrat on the Senate Judiciary Committee, summarized some of the concerns Democrats have walking into a new Trump term in which the incoming president enjoys a Senate majority that could help him confirm up to 150 or more judges over the next four years.
“I’m not ready to uncork the champagne just because we’ve done some really good work over the last four years,” Blumenthal said last week. “We need to be prepared to work, hope for the best, and try to defeat nominees who are simply unqualified.”
Federal appellate courts handle the vast majority of cases appealed from lower courts, as the Supreme Court hears only a small fraction, making these courts critical battlegrounds for shaping legal precedent.
Robert Luther, a George Mason University law professor who worked as associate counsel to Trump and helped with his judicial nomination rounds in the first administration, told the Washington Examiner Trump has the opportunity to flip other appeals courts now.
“The 10th Circuit, every judge that was put on before Trump is eligible to retire during the course of his term,” Luther said of the Denver-based appellate court, adding that the Richmond-based 4th Circuit has the potential to be reshaped by Trump.
His appointees lack star-studded influence of Trump’s nominees
Influence is another key measure where Biden’s judicial appointees fall short.
Trump’s judges have quickly emerged as intellectual leaders on the bench, with figures such as 5th Circuit Judge James Ho and 3rd Circuit Judge Stephanos Bibas writing opinions that have reshaped legal debates and garnered national attention. If a Supreme Court justice retired under Trump, he would get the opportunity to set his own standard for racial diversity milestones with candidates such as Ho, who would become the first Asian immigrant on the high court if nominated by Trump to fill a hypothetical vacancy.
In contrast, Biden appointees have yet to establish themselves as prominent voices or generate landmark decisions. Fourth Circuit Judge Toby Heytens, a Biden appointee, stands out as an exception, crafting progressive rulings on contentious issues such as race-conscious admissions and transgender matters.
However, such examples are rare compared to the widespread influence of Trump-appointed judges, many of whom are seen as top contenders for future Supreme Court vacancies.
Biden was never well-equipped to top Trump
Biden’s challenges were not entirely self-inflicted. He inherited only 46 judicial vacancies, far fewer than the 100-plus Trump filled, a disparity stemming from Republican obstruction of former President Barack Obama’s nominations caused in part by then-Senate Majority Leader Mitch McConnell’s blockade of nominees, including Merrick Garland, now Biden’s outgoing attorney general, to the Supreme Court.
Additionally, Biden’s emphasis on diversity and professional representation over clear judicial philosophies may have diluted the ideological coherence of his appointees, meaning some of them lack the well-defined philosophies of Trump’s nominees, which, in recent years, have tended to exert greater influence on the judiciary’s direction.
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Biden’s judicial legacy reflects a commitment to diversifying the federal bench, a milestone that may not amount to much fanfare in the future, especially given the conservative push away from valuing racial diversity over outright qualifications.
While Trump’s judicial record is often hailed as his most enduring accomplishment, Biden’s impact remains uncertain, leaving open the question of how his tenure will be judged in the years to come.