WASHINGTON — The Democratic-led Senate confirmed President Joe Biden’s 200th federal judge Wednesday, a milestone that highlights a sharp contrast with his election rival, Republican former President Donald Trump, as they seek to shape the courts over the next four years.
“Reaching 200 judges is a major milestone,” said Senate Majority Leader Chuck Schumer, D-N.Y. “Our federal judiciary is now far more balanced, far more diverse, far more experienced.”
It’s unclear whether Biden will catch up to the 234 judges Trump secured in his presidential term. But the winners of the presidency and the Senate majority in the 2024 election will have the power to shape the courts for the next few years, and the two men have dramatically different criteria in choosing nominees.
The White House occupant next term could even pick one or more new Supreme Court justices, which could shift or entrench the current 6-3 conservative majority. By the time the winner is sworn in, conservative Justice Clarence Thomas will be 76 and conservative Justice Samuel Alito will be 74. The next oldest member of the court is liberal Justice Sonia Sotomayor, who will be 70. Chief Justice John Roberts will turn 70 a week after the swearing-in.
“Father Time marches on. There could be some vacancies for whoever wins. And we could all get hit by a car tomorrow,” said Sen. Lindsey Graham, R-S.C., a candidate to chair the Judiciary Committee if Republicans win the Senate majority. “But the four years of the president — one of the biggest prizes is the court. So you might have some Republicans who think, ‘Now’s the time for me to leave so my replacement will be somebody of my philosophy,’ and vice versa.”
In addition to selecting new justices, the two parties have different visions for the Supreme Court: Democrats say they’re looking at new rules, such as a binding code of ethics and recusal standards for justices, and a more active role overseeing the court. Republicans, content with the conservative majority they’ve built, are telegraphing a hands-off approach that would preserve the court’s existing structure.
Graham said the stakes of the election for the courts could be simply summed up as: “More conservative if we win. More liberal if they win.”
The judicial records of Biden and Trump
But even though Biden hit the 200 marker earlier in his presidency than Trump did, he lags behind on the most influential courts. Biden has picked one Supreme Court justice, compared to two for Trump at this juncture. Biden has landed 42 appeals court judges — who have the last word on most federal cases, which never make it to the high court — compared to the 51 Trump had at this juncture.
Biden’s judges include many former civil rights lawyers, labor lawyers and public defenders, breaking from the mold of prosecutors and corporate lawyers that previous presidents tended to lean on. More than 60% of Biden’s judges are women, and more than 60% are nonwhite, said the White House. It said he has put more Black women on circuit courts than all previous presidents combined and more Hispanic and Asian American judges than any other president.
“For decades, Joe Biden has worked to protect and strengthen the integrity of our court system — and as president, he appointed the most diverse slate of federal judges ever, all of whom are committed to the Constitution and the rule of law,” Biden campaign spokesperson Charles Lutvak said in an email.
“Trump spent four years trying to reshape the courts to undo the election he lost and deny Americans’ fundamental rights. But if he gets four more years, it’ll be even worse: He’ll appoint people who share his extreme ideology. This election is nothing less than a choice between democracy and dictatorship,” he added.
Trump had a different standard in selecting judges, putting a premium on youth and conservative credentials. He chose much larger shares of white and male nominees than Biden did and a smaller share of nonwhite Americans than his three predecessors did, according to the Pew Research Institute.
In 2022, Biden picked Ketanji Brown Jackson, a former public defender, to be the first Black woman on the Supreme Court; she has since become a reliable member of the liberal bloc. It’s unclear whether Biden will have another vacancy to fill before the November election. In his four years, Trump chose three members of the conservative bloc — all of them 55 or younger when they were nominated.
“I faced down vile attacks from the radical left to confirm three great Supreme Court justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. They’re great. Oh, they were thrilled when I got three,” Trump said Saturday at the National Rifle Association convention.
In his speech, Trump recalled talking to one of his “people” while he was president, who told him about judicial nominees: “We like people in their 30s so they’re there for 50 years or 40 years.”
Trump said he remembered thinking: “Yeah, they’re exactly right.”
Democrats eye Supreme Court ethics rules
On the priority list for Democrats is Supreme Court ethics legislation, a cause fueled this week by reports that an upside-down American flag flew outside Alito’s home days after the Jan. 6 attack on the Capitol, when rioters brandished the symbol to try to overturn the 2020 election result and keep Trump in power.
“We have a lot of bills we want to get on the floor, but that’s one of them in high consideration,” Schumer told reporters Tuesday, adding that it “was really a wrong thing to do” on the part of Alito, “and it casts some doubt on his impartiality.” (Alito told Fox News that his wife hung the flag in a dispute with neighbors.)
Meanwhile, Senate Minority Leader Mitch McConnell, R-Ky., defended Alito when he was asked about the upside-down flag and whether Alito should recuse himself from Trump-related cases.
“There are just nonstop attacks on the Supreme Court, week after week after week. And so I’m not going to dignify that with a response. We need to leave the Supreme Court alone,” he told reporters Tuesday. “Protect them from people who went into their neighborhoods and tried to do them harm.”
The progressive advocacy group Stand Up America wants to go further, encouraging Democrats to run on overhauling the Supreme Court in the election. It commissioned a national poll taken by the Democratic firm Hart Research Associates, first shared with NBC News, which found overwhelming support for term limits for justices. By 64% to 24%, registered voters said they favor 18-year terms for current and future justices, which would enable each president to fill two vacancies in a four-year term.
When the poll asked voters how they’d react if a candidate for Congress backed 18-year justice term limits, 45% said it would make them “more likely” to vote for them, while 20% said it would make them “less likely” and 35% said it would have “no effect either way.”
(Hart Research Associates co-conducts the NBC News survey with the GOP pollster Public Opinion Strategies.)
A White House spokesperson noted that Biden has endorsed Supreme Court ethics and transparency legislation but didn’t comment on whether he favors term limits for justices.
Democrats, who are defending a fragile 51-vote Senate majority in a tough election cycle, say they worry about the Supreme Court’s moving further to the right if they don’t win the election.
“I don’t even want to think about it. I’ve got enough sources of anxiety and sadness,” said Sen. Richard Blumenthal, D-Conn. “It’s a frightening thought, because obviously a number of them could resign at any time to make way for the next wave of far-right MAGA judges — who are not really justices, just politicians in robes.”
