AMERICA’S JUDICIARY, Alexander Hamilton wrote in “Federalist 78”, is “beyond comparison the weakest of the three departments of power”. That assessment may have been sound in the 18th century, but it no longer is. Federal judges define constitutional rights, resolve quarrels between Congress and the White House, settle election disputes and seal the fates of regulatory decisions. Their appointments are often a modern president’s most enduring legacy. Democrats hold the slimmest possible majority in the Senate, where a president’s judicial nominees must be confirmed. That edge could disappear after the 2022 elections, giving Joe Biden little time to waste in making his mark on America’s third branch of government.
Donald Trump installed 231 judges on America’s federal courts—the most since Jimmy Carter. One quarter of all federal judges were appointed by Mr Trump. That is partly because Mitch McConnell, the Senate majority leader from 2015 until just last month, slowed confirmations during Barack Obama’s last year in office. Mr Trump also appointed three of the Supreme Court’s nine justices (Mr Obama appointed just two in twice the time), including Neil Gorsuch, who took a seat that Mr McConnell refused to let Mr Obama fill.
Mr Biden began his term with fewer judicial vacancies to fill than Mr Trump did—47 compared with 106. But these freshly robed, mostly young, conservative judges will soon begin to welcome more progressive colleagues, as older judges begin stepping back. Not that they have to: federal judges may stay in their robes as long as they like. They can also take “senior service” at age 65—which means a reduced caseload and smaller office—when their age and years on the bench add up to 80. But some inevitably grow keen to leave regular service when a like-minded president and a favourable Senate majority are safely in place to name their successors.
That was apparently the calculation of Victoria Roberts, a 69-year-old judge in Michigan who has been banging the gavel since 1998. Just over an hour after Mr Biden was sworn in, Ms Roberts told the new president in a letter that “it has been my honor to serve,” but that February 24th would be her final day of regular service. About a dozen other judges appointed by Democratic presidents have done the same.
The research on how strongly judges consider the party of the incumbent president when mulling retirement is inconclusive. One study in 1990 found some signs that district-court judges time their retirements to give presidents of their own party a chance to replace them, but later studies have questioned this finding.
By the count of Russell Wheeler of the Brookings Institution, of the 74 current or impending vacancies on the federal bench, 46 were or are occupied by judges appointed by Republicans. In addition, 26 Republican appointees were eligible to go senior during Mr Trump’s final year as president but chose not to. Mr Wheeler wonders whether this is because judges tapped by Republicans are “less likely to make strategic retirement decisions”; or, he asks, “did they just not want Trump appointees replacing them?”
Mr Biden’s team, led by Dana Remus, the White House counsel, is hunting for public defenders, scholars and civil-rights lawyers as potential nominees. This search for progressive lawyers contrasts sharply with Mr Trump’s judicial line-up, most of whom were identified and cultivated by the Federalist Society, an association of conservative lawyers and legal scholars. With a broad commitment to diversifying the bench, Mr Biden’s picks are likely to differ from Mr Trump’s not only in ideology and experience but in complexion. Whereas 42% of Mr Obama’s nominees were women and 36% were non-white, only 24% and 16% of Mr Trump’s judges were.
Mr Biden says his first pick for the Supreme Court will be a black woman—a nomination that could come this year if Stephen Breyer, aged 82, retires. Possible successors for Justice Breyer include his former clerk Ketanji Brown Jackson, a district-court judge; Sherrilyn Ifill, head of the NAACP Legal Defense and Educational Fund; and Leondra Kruger, a young associate justice on the California Supreme Court and former Obama administration official.
For now, Mr Biden’s efforts will focus on district courts, which have most of the openings. Only six vacancies to date are on the more consequential appellate courts. One is on the First Circuit Court of Appeals, which hears cases from much of New England and Puerto Rico. Mr Trump nominated Raúl Arias-Marxuach in November but never got him confirmed. Two vacancies on the Second Circuit Court of Appeals in New York give Mr Biden a chance to place younger people in these powerful roles. Among the contenders for the seats are Melissa Murray, who clerked for Sonia Sotomayor before the latter’s elevation to the Supreme Court and now teaches law at New York University, and Dale Ho, a lawyer at the American Civil Liberties Union who won a 5-4 victory at the Supreme Court challenging the addition of a citizenship question to the 2020 census.
Ms Remus is intent on getting nominees lined up and filling seats quickly. The administration will forgo evaluation of candidates by the American Bar Association, breaking with the convention of Democratic administrations turning to the ABA as a gatekeeper and matching the practice of George W. Bush and Mr Trump. That could speed up each nomination by several weeks.
Another factor that could affect the pace, Mr Wheeler notes, is whether the Biden administration gives senators from appointees’ home states the right to weigh in on a nominee before a nomination. Not all presidents have hewed to this traditional courtesy, and the Biden administration might not want the speed bump. With controversial proposals on environmental regulation, immigration and court reform in the offing, a receptive judiciary will be crucial to whether Mr Biden’s agenda—and progressive policies years after he has left the White House—survive legal challenges.