How Democrats are Winning the Race for the Lower Courts
Plus, surprising new data on cannabis use in the May 23, 2024 newsletter.
The post How Democrats are Winning the Race for the Lower Courts appeared first on Washington Monthly.
While Supreme Court Justice Samuel Alito has been letting his freak flags fly, President Joe Biden has been quietly transforming the lower courts.
As I write today for the Washington Monthly, Biden just notched his 200th lower court judge, a faster pace than Donald Trump.
While we don’t know yet if Biden can beat Trump’s final lower court count of 231, he has already reclaimed the majority of lower court seats for Democrats. And although Trump flipped the majorities of three of the 13 appellate courts, briefly giving Republicans a majority in seven, Biden flipped one back and has made significant inroads into two others.
And even if Trump got back into office, he probably won’t have as many opportunities to fill vacancies.
I’ll explain further, but first, here’s what’s leading the Washington Monthly website:
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This Isn’t Your Father’s Marijuana Use: Jonathan Caulkins, Carnegie Mellon University public policy professor, and Keith Humphreys, Stanford University psychiatry professor, detail a new study showing daily cannabis use is outpacing daily alcohol consumption. Click here for the full story.
Another Biden Accomplishment: 200 Judges and Counting: My analysis of the president’s reshaping of the federal judiciary. Click here for the full story.
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In today’s column I noted that because “both parties have taken great care to nominate relatively young people to the judiciary … only 13 Democratic appointees are left who will be at least 70 years old by year’s end and haven’t already announced their retirements.”
One data point I did not mention is how many overall vacancies are likely to remain at the end of Biden’s term, compared to what Barack Obama and Trump left for their predecessors.
Based on the data provided by the federal judiciary regarding current and future vacancies, 45 available slots lack nominees from Biden, including 16 seats last held by Republican appointees and 29 by Democratic appointees. Maybe some of these will get filled by the end of the term, and maybe new openings will arise. But that gives us a rough idea what will be left undone by January.
Obama, in stark contrast, left office with 105 vacancies. Unlike Biden, Obama had a Republican Senate during his last two years in office, severely slowing the pace of confirmations, and creating a big opportunity for Trump.
Four years later, Trump left behind 54 vacancies, though that number quickly swelled after Biden’s inauguration. I wrote in April 2021, “the federal judiciary has 97 current and future vacancies for seats with lifetime appointments. Fifty-two of those vacant seats were last held by Republicans.” Biden appears to be leaving fewer such openings on the table.
Also keep in mind the ability to flip the lowest level District Court seats, which constitute most of these vacancies, is constrained by the Senate’s “blue slip” tradition, in which home state Senators exercise an informal veto over presidential nominees.
(During the Trump presidency, Republicans ended the blue slip courtesy for appellate level nominees, and Democrats have not yet brought it back. Senator Dick Durbin recently floated forging a bipartisan agreement to restore blue slips for appellate level nominees in 2025.)
The never-ending churn of judicial vacancies will always create some opportunities for parties—when they control both the White House and Senate—to put their stamp on the third branch of government. But the judicial opportunities for a hypothetical Republican-dominated Washington next year appear to be very limited.
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Best,
Bill Scher, Washington Monthly politics editor
The post How Democrats are Winning the Race for the Lower Courts appeared first on Washington Monthly.