Democrats present Biden-appointed judges as ‘shield for democracy’ against Trump

Serena Raquel Murillo was the last judge confirmed by the Senate during Joe Biden’s presidency. Her appointment brought the total number of federal judges appointed by Biden to 235, the highest number in a single term since Jimmy Carter’s 262 appointments between 1976 and 1980. The president marked this milestone on Thursday with an event at the White House, just weeks before leaving office. Biden hopes that his legacy of judicial appointments will serve to strengthen a progressive interpretation of the law, and that these judges will serve as defenders of the Constitution against the threats he perceives with the potential return of Donald Trump to power. As Senate Majority Leader Chuck Schumer put it, they will be “a shield that protects our democracy.”

Murillo’s confirmation allowed Biden to surpass the 234 judges appointed by Trump during the Republican’s first four years in office. Federal judges serve for life, and Biden’s appointees now account for a quarter of the judicial bench. “Judges matter,” said Biden at the event, highlighting their importance in “shaping the everyday lives of Americans. Protecting our basic freedoms. Defending constitutional liberties.” He added: “These judges will be independent, they’ll be fair, and they’ll be impartial, and they’ll respect the rule of law. And most importantly — I never thought I’d be saying this — they’ll uphold the Constitution.”

Schumer, who pushed for the confirmation of the appointments, expressed the same sentiment. “These judges come just in time. Our democracy faces an uncertain future, and many people are rightly worried. The good news is that these judges will be a barrier against attacks against on our democratic institutions,” he said. “Thanks to these judges, it is now far more likely today than it was just a few years ago that these attacks on democracy will be blunted. In short, these judges will be the shield that protects our democracy.”

After Vice President Kamala Harris was defeated by Donald Trump in the election, Biden made judicial appointments a key priority in the final stretch of his presidency. Each confirmed appointment meant one less vacancy for his successor to fill. With Republicans maintaining comfortable control of the Senate in the new legislature, Trump is expected to have little trouble getting his own judicial picks confirmed by the upper chamber.

The contrast between the two presidents’ appointments is striking. During his four years in office, 76% of Trump’s judicial appointees were men, and 84% were white. In contrast, nearly two-thirds of Biden’s appointments are women, and less than 40% have been white. In his push for diversity, Biden has appointed a record number of women, African Americans, Latinos, Asian Americans, Native Americans, Muslim Americans, and members of the LGBT community.

What’s more, the president has chosen candidates with professional profiles marked by greater social sensitivity. Biden has appointed more than 45 public defenders, over 25 civil rights lawyers, and at least 10 professionals who have represented workers. He has also selected candidates from the private legal sector, the Public Prosecutor’s Office, and other legal fields, including immigration law, municipal law, and even retired military personnel.

Although Biden’s judicial appointments surpass Trump’s in total number, they are lower on the judicial ladder. The U.S. federal judicial system consists of three levels. At the bottom are 677 district or trial judges, spread across 94 districts nationwide. Their decisions can be appealed to the 13 courts of appeal, which collectively have 179 judges. At the top are the nine Supreme Court justices. While all appointments are for life, turnover tends to be higher at the lower levels due to retirements and resignations, while Supreme Court justices generally serve longer terms.

Thanks to Republican maneuvering in the Senate, Trump was able to appoint three Supreme Court justices during his first four years in office, solidifying a conservative supermajority of six justices to three — one that is likely to endure for years to come. To shift this balance, conservative justices would need to retire during a Democratic president’s term. The oldest justices, conservatives Clarence Thomas (76) and Samuel Alito (74), have shown no signs of retiring, although a resignation near the end of Trump’s term cannot be ruled out. The other four conservative justices are all under 70, with three of them under 60.

A single appointment to the Supreme Court

Meanwhile, Biden has only been able to appoint one Supreme Court justice: Ketanji Brown Jackson, 54, the first Black woman to serve on the High Court. The president made this appointment following the resignation of Stephen Breyer, a justice appointed by Bill Clinton, who retired at the age of 84.

Beyond the Supreme Court, Biden has also fallen behind Trump in appointing appeals court judges, with 45 to Trump’s 54. During the latter part of Barack Obama’s presidency, Republicans blocked the confirmation of Obama’s judicial nominees in the Senate, leaving over 100 vacancies (including one on the Supreme Court) that Trump was quick to fill upon taking office. Now, Republicans are returning to power with 39 vacancies, according to updated data — the lowest number in decades at the time of a power transfer. The record for judicial appointments in two terms is held by Ronald Reagan, with 383 (11 of which are still active), followed by Bill Clinton with 378 (31 still on the bench).

Schumer took center stage in the final push for judicial confirmations, which involved a cumbersome parliamentary process. He reached an agreement with Republicans to delay the confirmation of four appeals court judges in exchange for speeding up the confirmation of 15 district judges. “One out of every four active judges on the bench have been appointed by this majority,” Schumer remarked in summing up. “This is historic and will have huge and positive implications for the American people for generations to come.”

Last week, Biden vetoed a congressional bill that would have expanded the number of federal judges by 66, at a rate of 22 every four years. The law had been negotiated between Republicans and Democrats with the idea that it would be passed before the presidential election, so the identity of the president who would appoint the new judges would remain unknown. The bill passed the Senate unanimously in August, but Republicans delayed it in the House of Representatives and only approved it after learning that Trump had won the election. Biden argued that the law left unresolved issues, such as the distribution of the new courts, in order to veto it.

In 2018, Chief Justice John Roberts defended the independence and professionalism of all federal judges, regardless of who appointed them, after Trump criticized a decision on his asylum policy made by what he called “an Obama judge.” “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

However, the reality is that judges’ sensitivity when making decisions on issues such as abortion, immigration, civil rights, or labor often varies greatly and tends to align with the ideological leanings — more progressive or conservative — of the president who appointed them.

In his closing remarks for 2024 on Tuesday, Chief Roberts once again defended judicial independence, which he said is under threat from intimidation, misinformation, and the potential for public officials to defy court orders. “Violence, intimidation, and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable,” he wrote, warning that “it is not in the nature of judicial work to make everyone happy.”

Roberts also condemned elected officials from all political parties who have “raised the specter of open disregard for federal court rulings.” “Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed. Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others,” he added.

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