counterparts, with or without ABA approval. They can afford to focus on identity rather than ideology. The reason President Trump didn’t appoint many black female judges wasn’t misogyny or racism, but that there just aren’t many black female judges who want “deconstruction of the administrative state.” The lower courts are where the action is – the Supreme Court hears fewer than 70 cases a year, compared with the 50,000 that don’t make it to the big show. Every four‐year term, the president gives life tenure to about a fifth of all federal judges, while Trump’s 234 put him at more than a quarter. Then- Senate Majority Leader Mitch McConnell’s confirmation machine left only 46 vacancies by Inauguration Day. Even after the first batch of Biden confirmations, that’s now grown to about 80, with nearly 30 announced future vacancies (including judges who will retire upon their successors’ confirmation). That’s still significantly fewer opportunities than Trump had at this point, so Biden will be hard-pressed to match his immediate predecessor – who was second all‐time for a single term after Carter, for whom Congress created scores of new judgeships to shake him out of his malaise for not having any Supreme Court vacancies. In short, Biden’s judicial impact will be less than one may normally expect, and much less than his erstwhile running mate. When Obama took office, only one of the 13 federal circuits had a majority of Democratic- appointed judges. When he left, nine did. Trump flipped three of them back and got 54 circuit judges confirmed overall, just one fewer than what Obama did in two terms.
Biden is unlikely to flip any circuits, not because of the 50-50 Senate but because there are only 26 Republican-appointed circuit judges eligible to take senior status (basically retirement at full salary), and these are clustered on courts that have either D majorities already or hopeless R skews. Of course, the big battle will come when 82‐year‐old Justice Stephen Breyer retires to avoid Justice Ruth Bader Ginsburg’s fate of being replaced by someone with a different cut to his black robe. If Trump hadn’t pissed away both Georgia Senate seats (and thus the GOP majority) with his post‐election foofaraw, Breyer would likely be staying on through next year’s midterms. Now he doesn’t have that excuse – and a progressive chorus has been calling on our oldest sitting justice to retire even before our oldest-serving president was inaugurated. The Democrats’ tie-breaking majority also ensures that we won’t have the first Supreme Court nominee facing a Senate controlled by the opposite party since... Clarence Thomas.
In short, Biden’s judicial impact will be less than one may normally expect, and much less than his erstwhile running mate.
Past the Breyer vacancy – mark my words: this or next summer – it’s unclear when the next chance to name a judicial high priest will arise. The next-oldest justices are Thomas (72) and Alito (71), who won’t willingly depart during a Democratic administration. After
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