By Mattathias Schwartz and June Kim
Federal judges have always wielded great influence. But as Congress has failed to pass major legislation in recent years on issues like abortion, immigration and gun ownership, the courts have assumed a more pronounced role, setting the agenda on some of the country’s most divisive questions.
When voters pick the next president, they will also be choosing between two visions of the federal judiciary. Federal judges are nominated by the president and confirmed by the Senate, and almost all will serve for life, shaping U.S. law for generations.
President Joe Biden and former President Donald Trump both understood the judiciary’s powerful sway over American life. Trump succeeded in naming more federal judges in a single term than any president had since Jimmy Carter, and Biden is close behind.
Today, around half of all federal judges were nominated by one of the two most recent presidents. A New York Times analysis of their choices found stark differences among them in ideology, demographics and prior experience.
The next president will probably take office with roughly 40 vacancies to fill. Many more openings can be expected over the next four years because of deaths, retirements and resignations. And successfully filling those vacancies will largely depend on control of the Senate.
Biden’s and Trump’s outsize success hinged on the fact that each man’s party had majority control of the Senate throughout their term in the White House. Democrats narrowly control the chamber now, but recent polling data suggests that Republicans could win enough seats to take over in January.
If that happens and Vice President Kamala Harris wins the presidency, she would very likely face an uphill battle in getting her judicial nominees confirmed. If Trump wins, he could see even more success with a Republican Senate.
A more polarized judiciary
The federal judiciary system has three levels: At the bottom are the nation’s 94 district courts, where a total of 677 judges handle the bulk of the nearly 400,000 cases that pass through the court system each year. Challenges to district court rulings are heard by the 13 circuit courts of appeals, with a total of 179 judges. Only a tiny sliver of those cases find their way to the Supreme Court.
Most everyone in the legal world believes that the way judges rule on politically consequential cases tends to align with the party of the president who nominated them. Everyone, that is, except for the judges themselves.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice John Roberts once said. “What we have is an extraordinary group of dedicated judges doing their level best.”
But a Times analysis of data collected by Stanford University shows that judges’ ideologies, as determined by campaign contributions they made before being confirmed, are closely linked to the party of their nominating president. And the data shows that a 2013 change to Senate filibuster rules, led by Sen. Harry Reid, D-Nev., who was the majority leader, may have contributed to a more polarized judiciary.
Biden’s judges, on average, were somewhat more liberal than those nominated by his Democratic predecessors. Trump’s judges were, on average, ideologically similar to those nominated by previous Republican presidents.
The scores are derived from Stanford’s Database on Ideology, Money in Politics, and Elections, also known as DIME. The database, created by political scientists Adam Bonica and Maya Sen, has tracked half a billion political contributions made in local, state and federal elections over the last 45 years.
The database calculates a score for judges’ ideologies using records of campaign contributions they made before they were confirmed to the bench and became barred from making such contributions.
The score does not account for the judges’ actual rulings. Those are harder to track ideologically, because very few cases in the lower courts have a direct impact on political questions. Even so, the creators of the database say the scores have proved to be reliable indicators of judges’ ideological leanings after taking the bench.
“Today, it’s almost always the case that 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’s gradually changed over time.”
Differences in race, gender and experience
Harris once said she envisioned a judiciary that “looks like America.” As vice president, she pushed Biden to choose Ketanji Brown Jackson to fill a Supreme Court vacancy, making Jackson the first Black woman to serve on the high court.
A Times analysis shows that nearly two-thirds of the judges nominated by Biden were female, and the group as a whole was far more racially diverse than Trump’s nominees. Biden nominated 38 Black women to the bench who were then confirmed by the Senate — more than the Trump, Obama, and George W. Bush administrations combined.
Trump’s judges, by contrast, were largely white and male. He has not directly addressed the race or gender makeup of his nominees, but a senior campaign adviser, Brian Hughes, said in a statement that a second Trump term would bring more “constitutionalist judges who interpret the law as written.”
The differences went beyond race and gender. The data shows that Trump favored judicial nominees who had served in the military. Biden sought out jurists with experience defending clients who could not afford counsel, nominating nearly eight times as many such jurists as Trump did.
Control of the courts
If judges’ ideologies are linked to the party of the president, then which party’s judges have greater control now? For the Supreme Court, it is clear: Trump’s three nominees have given Republicans a 6-3 majority. Richard Nixon was the last president to get so many nominees onto the nation’s highest court in a single term.
At the lower levels, party control varies by geography. The White House will generally consult with the senators of a nominee’s home state before sending that nominee’s name to the Senate for approval. The process places extra value on the home-state senators’ opinions, which means that lawmakers from larger states where more judges sit, like California and Texas, have outsize influence over the judiciary as a whole.
Trump’s success at placing judges on the 5th Circuit, which oversees nine district courts in Texas, Mississippi and Louisiana, is especially notable. The circuit has a large number of “single-judge divisions,” where one district judge hears all or most of the cases brought in that geographic area, giving plaintiffs a good idea of who might hear their case.
These single-judge divisions have produced some of the most consequential rulings in recent years. In Texas, Judge Matthew J. Kacsmaryk, a Trump nominee who hears every federal case brought in 26 Texas counties, issued a preliminary ruling last year that would have limited access to the abortion drug mifepristone; the ruling was overturned by the Supreme Court in June.
Over the past few decades, some of the nation’s more liberal rulings have come out of the 9th Circuit, which covers California and eight other Western states. It was a district judge in Hawaii, Derrick K. Watson, who blocked Trump’s travel ban against travelers from predominantly Muslim countries in 2017, a decision that was later affirmed by the 9th Circuit.
A legacy that lasts generations
Current and known future judicial vacancies are spread across the country, with the greatest numbers in California (five), Texas (five), Missouri and Louisiana (four each).
If elected, Harris would have a disproportionate number of vacancies to fill in states with Republican senators, including a few seats that have gone unfilled for years and were among the toughest for Biden to fill.
Deaths, resignations, retirements and judges choosing to shift to senior status, a form of semiretirement, will yield many more vacancies for the next president. Exactly how many is hard to predict: Some judges retire relatively young, while others keep their seats into their 80s and 90s.
New judicial appointments shape the legal landscape not only through their rulings but also because lower-court judgeships
Comments