Federal judges have always wielded significant influence. But in recent years, as Congress has failed to pass major legislation on issues such as abortion, immigration and gun ownership, courts have taken on a more prominent role, weighing in on some of the country’s most divisive issues. It is set.
When voters choose their next president, they will be choosing between two visions for the federal judiciary. Federal judges are nominated by the president and confirmed by the Senate, nearly all serve for life, and they shape American law for generations.
Both President Biden and former President Donald J. Trump understood the judiciary’s powerful influence on American lives. Mr. Trump has managed to appoint more federal judges in a single term than any president since Jimmy Carter, and Mr. Biden is close behind.
Currently, about half of all federal judges are appointed by one of the last two presidents. A New York Times analysis of their choices found clear differences in ideology, demographics and past experiences.
The next president will likely take office with about 40 vacancies to fill. More job openings are expected over the next four years due to deaths, retirements, and resignations. And successfully filling these vacancies will depend largely on control of the Senate.
The extraordinary success of Mr. Biden and Mr. Trump hinged on the fact that both their parties held majorities in the Senate throughout their terms in the White House. Democrats currently control the chamber by a narrow margin, but recent polling data suggests Republicans could win enough seats to take control of Congress in January.
If that happens and Vice President Kamala Harris is elected president, she will very likely face an uphill battle to get her judicial nominees approved. If Trump wins, he could have even more success in the Republican Senate.
Further polarization of the judiciary
The federal judicial system has three levels. At the bottom are the 94 district courts across the country, with a total of 677 judges who handle the bulk of the nearly 400,000 cases that go through the court system each year. Challenges to district court decisions are heard by the 13 Circuit Courts of Appeals, which have a total of 179 judges. Only a small percentage of these cases make it all the way to the Supreme Court.
Most people in the legal community believe that the way judges rule on politically significant cases tends to align with the party affiliation of the president who nominated them. That is, everyone except the judges themselves.
“We don’t have an Obama Justice, we don’t have a Trump Justice, we don’t have a Bush Justice, we don’t have a Clinton Justice,” Chief Justice John Roberts once said. “What we have is an extraordinary group of dedicated judges who do their best at their level.”
But a Times analysis of data collected by Stanford University found that justices’ ideology is determined by their campaign contributions before they are confirmed and is closely tied to the party of their nominee. It was shown that And the data shows that changes to the Senate filibuster rules in 2013, led by the majority leader, Sen. Harry Reid, a Nevada Democrat, may have contributed to the polarization of the judiciary. are.
Mr. Biden’s judges were, on average, somewhat more liberal than those nominated by his Democratic predecessors. On average, Trump’s judges were ideologically similar to judges nominated by previous Republican presidents.
This score comes from Stanford University’s Ideology, Political Finance, and Elections Database, also known as DIME. The database, created by political scientists Adam Bonica and Maya Sen, tracks 500 million political contributions made in local, state, and federal elections. Over the past 45 years.
This database calculates a judge’s ideology score using records of campaign contributions made before the judge was confirmed by the court and prohibited from making such contributions.
The score does not take into account the judge’s actual ruling. Few cases in lower courts directly impact political issues, making these cases even more difficult to track ideologically. Still, the database’s creators say the scores have proven to be a reliable indicator of a judge’s ideological leanings after joining the bench.
“Right now, in most cases, Republican presidents appoint conservative judges and Democratic presidents appoint liberal judges,” said Bonica, who manages the database. “In the 1970s and 1980s, there was a lot more overlap, but it has gradually changed over time.”
Differences in race, gender, and experience
Harris once said she envisioned a judiciary “like America.” As vice president, she urged Biden to select Ketanji Brown Jackson to fill the vacancy on the Supreme Court, making Judge Jackson the first Black woman to serve on the high court.
A Times analysis found that nearly two-thirds of Biden’s nominees were women, and the bench overall was far more racially diverse than Trump’s nominees. Mr. Biden has nominated 38 Black women to seats who have since been confirmed by the Senate, more than the Trump, Obama and George W. Bush administrations combined.
By contrast, most of Trump’s judges were white men. Trump has not directly addressed the race or gender makeup of his candidates, but senior campaign adviser Brian Hughes said in a statement that Trump’s second term is aimed at “constitutionalists who interpret the law as written.” The number of judges will increase, he said.
The differences transcended race and gender. Data shows that Trump favors judicial candidates who have served in the military. Mr. Biden sought out jurists with experience defending clients who cannot afford lawyers, and he nominated nearly eight times as many such jurists as Mr. Trump.
court management
If a judge’s ideology is related to the president’s political party, which party’s judges currently have more control?For the Supreme Court, three Trump nominees to six Republicans It is clear that he gave a majority of 3. Richard Nixon was the last president to field so many nominees to the nation’s highest court in one term.
At lower levels, party control varies by region. The White House typically consults with senators from a nominee’s home state before sending the nominee’s name to the Senate for confirmation. This process will give special weight to the opinions of local state senators. This means that lawmakers in larger states with more judges, such as California and Texas, will have greater influence over the judiciary.
Mr. Trump’s success in staffing the 5th Circuit, which covers nine district courts in Texas, Mississippi, and Louisiana, is particularly noteworthy. This circuit has a number of “single judge divisions,” in which one district judge hears all or most cases filed in that geographic area, so plaintiffs have no control over who hears their case. You can get a good idea of what to do.
These single-judge divisions have produced some of the most significant judgments in recent years. In Texas, Judge Matthew J. Kaczmarik, a Trump nominee who hears all federal lawsuits filed in 26 Texas counties, issued a preliminary ruling last year restricting access to the abortion drug mifepristone. This ruling was overturned by the Supreme Court in June.
Over the past few decades, some of the country’s more liberal decisions have come from the Ninth Circuit, which covers California and eight other Western states. It was Hawaii District Judge Derrick K. Watson who blocked Trump’s travel ban on travelers from Muslim-majority countries in 2017, a decision later upheld by the Ninth Circuit. did.
A legacy that lasts for generations
Current and future known judicial vacancies are spread across the country, with the highest numbers in California (5), Texas (5), and Missouri and Louisiana (4 each) .
If Harris wins, she would have to fill a disproportionate number of vacancies in the state with Republican senators, including one that has remained unfilled for years and is one of the most difficult for Biden to fill. It is.
Deaths, resignations, retirements, or judges choosing to move into senior positions, a form of semi-retirement, will create more vacancies for the next president. It is difficult to predict exactly how many people there will be. While some judges retire relatively young, others continue to serve as judges into their 80s and 90s.
Appointments of new justices not only shape the legal landscape through their decisions, but also move lower court justices up the ladder to nomination to the Supreme Court, as eight of the nine sitting justices did. This is also because they often participate in
Both Mr. Trump and Mr. Biden were looking for relatively young judicial nominees who could serve for decades. One of Trump’s picks, Kathryn Mizell, became a judge in the Middle District of Florida at the age of 33, making her one of the youngest federal judges in history.
Josh Hsu, who served as Harris’ deputy chief of staff in the Senate and then as a vice president’s adviser, said his experience as a prosecutor and as California’s attorney general made him keenly aware of the power of the judiciary.
When Harris was on the Senate Judiciary Committee, he said, “She would ask questions about Trump’s nominees about reproductive rights and voting rights, because she was a district court judge.” “Because I knew the impact I could have,” he said.
Halina Bennett contributed to the research.
