With the outcome of the 2024 elections for the president and control of the Senate very much up in the air, Democrats must make a concerted effort to fill federal judicial vacancies before next November.
Republicans did this very effectively before the end of the Trump presidency, leaving few vacancies for President Biden to fill when he took office. Now the Democrats must emulate that approach. And they must do so now.
At the moment, there are two vacancies without nominees on appeals courts and 37 on district courts. Because the evaluation process of nominees takes time, it is imperative that the Biden administration quickly name nominees to those and future vacancies. The Senate then must work expeditiously to confirm those deemed suitable for the lifetime appointments.
Mr. Biden has nominated 186 people to Article III judgeships, which include the Supreme Court and the federal appeals and district courts, according to the White House. At this point in their tenures, George W. Bush had nominated 211, followed by Mr. Trump’s 206, according to the Heritage Foundation’s Judicial Appointment Tracker. There have been inexplicable and troubling delays in this process. For example, two years ago, Judge Diana Motz of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., announced that she would take senior status, a form of semiretirement, when a successor was confirmed. She took senior status last year, though no replacement had been named at that time. And still no one has been nominated for this important judgeship.
Time may be running out for the Biden administration.
It is critical for federal judges who would like to be replaced by a Democratic president to take senior status so that Mr. Biden can appoint their successors with sufficient time to allow them to be confirmed by the current Senate. A federal judge or justice may take senior status after meeting the age and service requirements of the “Rule of 80” — the judge must be at least 65 years old, and the judge’s age and years of service must add up to 80. A total of 121 federal judges are now eligible for senior status but have not announced their plans, according to the group Balls and Strikes, which tracks that information. Of those, 44 were appointed by Democratic presidents. By Jan. 20, 2025, the date of the next presidential inauguration, that number could rise to 69.
There is little reason for judges not to take senior status. They can continue to hear cases, even carry a full load of cases. And taking senior status allows the president to fill that seat on the bench. The judge can condition taking senior status on the confirmation of a successor. A senior judge typically is not allowed to participate in en banc decisions, where all (or a significant number) of the judges on the court review a matter that is particularly significant or complex. But that is the main restriction on what a senior judge may do.
We are long past the time when it could be said that judges appointed by Republican and by Democratic presidents were indistinguishable. This was made clear in an analysis of Supreme Court rulings published in July 2022 by the data-driven news site FiveThirtyEight, which found the partisan divide among the current justices “is deeper than it’s been in the modern era.”
And this partisan divide is not confined to the Supreme Court. There are often huge differences between how judges in the lower courts who were appointed by Democratic and by Republican presidents decide cases. For example, a federal appeals court recently upheld Tennessee and Kentucky laws prohibiting gender-affirming care for transgender minors, with the two Republican-appointed judges siding with the states and a judge initially nominated by President Bill Clinton dissenting. Whether it is reproductive rights or gun rights or employee rights, or in countless other areas, the outcome often depends on which president appointed the judge or judges hearing the case.
For that reason, I wrote an opinion article in The Los Angeles Times in March 2014 urging Justice Ruth Bader Ginsburg, then 81, to retire so that President Barack Obama could replace her while there was a Democratic Senate and someone with progressive values would take her seat. She took offense at the suggestion, also raised by others, and remained on the bench until she died in September 2020, when President Trump replaced her with the conservative Justice Amy Coney Barrett. Justice Ginsburg gambled, and America lost.
Likewise, I think of the liberal federal court of appeals judges who did not take senior status, though they were eligible during the Obama presidency. For example, Judge Stephen Reinhardt of the Ninth Circuit declined to take senior status; when he died at age 87 in 2017 President Trump replaced him with a conservative judge. By the time another liberal Ninth Circuit judge, Harry Pregerson, decided to take senior status in late 2015, he was 92, and though Mr. Obama quickly nominated a replacement, it was late in his term and got caught up in politics and President Trump ended up appointing another conservative to the seat.
Creating vacancies will matter only if Mr. Biden quickly names replacements and the Senate confirms the nominees. If the president is not re-elected, the Republican president will fill any vacancies that exist upon taking office. And regardless of the outcome of the presidential election, if the Republicans take control of the Senate, the confirmation of judicial candidates nominated by a Democratic president will be far more difficult. That is why immediate action is imperative.
A president’s most long-lasting legacy is arguably the judges he appoints. Many will serve for decades after the president leaves office. Republicans have tended to recognize this much more than Democrats. That needs to change, and quickly.
Erwin Chemerinsky is the dean of the law school at the University of California, Berkeley.
Source photographs by John Slater and SergeyChayko/Getty Images
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