Biden's focus on confirming judges reshaped courts as Democrats challenge Trump agenda

WASHINGTON – Before Democrats surrendered control of Congress and the White House to Republicans in January, they celebrated the fact that Joe Biden had put more judges on the federal bench than any recent president in a single term.

"Judges shape our lives," Biden said on social mediain December, touting the confirmation of his 235th judicial nominee and what he called "the legacy I'll leave with the men and women I've appointed."

That legacy has become even more important for Democrats now that the courts are their best chance of thwarting President Donald Trump’s efforts to significantly downsize and reshape the federal government in ways that are testing his legal authority to do so.

Nearly six out of 10 full-time federal district judges – the first judicial layer to consider the growing number of lawsuits against Trump’s actions – have now been appointed by Democratic presidents, according to the Brookings Institution. At the start of Biden’s presidency, the appointments were nearly evenly divided after Trump picked almost as many judges as Biden later got confirmed.

At the next level of judicial scrutiny – the appeals courts – the number of full-time judges appointed by Democratic presidents has pulled even with those appointed by Republicans.  

But while Biden got to fill one Supreme Court vacancy, his choice – Justice Ketanji Brown Jackson– did not change the ideological makeup of the court as she replaced Justice Stephen Breyer, who had been appointed by President Bill Clinton, a Democrat.

That left the highest court with the 6-3 conservative supermajority it had after Trump appointed three justices during his first administration.

“We can expect that these cases will tend to get friendlier to the administration as they go up the appellate ladder,” Benjamin Wittes, a senior fellow in Governance Studies at Brookings, said on a recent episode of “The Lawfare Podcast.”

Russell Wheeler, a senior fellow at the Brookings Institution who compiled the nomination data, said knowing which president appointed a judge isn’t a sure-fire predictor of how the judge will rule, but there’s a relationship.

That’s why Democrats are filing their challenges in districts where their odds of getting a more sympathetic judge at the district and circuit level, are higher, just as Republicans favored certain GOP-friendly districts when they were trying to stop Biden’s policies.

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“Both sides do it,” Wheeler said.

Early court wins may be temporary

The increasingly conservative bent of higher-tier judges doesn’t mean that Trump will win every case that makes it to the Supreme Court or lose every challenge at the district court.

As district court judges have begun considering dozens of lawsuits challenging the Trump administration edicts, nearly all have pumped the brakes. But the pauses they’ve put on Trump’s efforts to freeze spending, end automatic citizenship for some children born on U.S. soil, send transgender women to men’s prisons, access federal payment systems and dismantle the United States Agency for International Development – among other actions – have largely been to give the judges more time to consider the legal issues.

For example, U.S. District Judge George O'Toole, who was appointed by Clinton, initially paused the Trump administration’s deadline for more than 2 million federal employees offered buyouts to decide whether to resign or stay in their jobs. O’Toole issued his temporary restraining order hours before the "Fork in the Road" offer was set to expire.

But after reviewing labor unions' challenge to the offer, O’Toole lifted his hold days later. The judge said the unions hadn’t shown they had enough of a stake in the issue to be able to sue.  

Four judges – two appointed by Republicans and two by Democrats – have issued injunctions to stop Trump’s order preventing children born in the United States to parents without legal authorization from being citizens.

That puts the order on hold while relevant challenges are litigated – unless the Justice Department can convince an appeals court or the Supreme Court to lift the hold.

Of all the challenges that could make their way to the high court, Trump’s effort to restrict birthright citizenship may be the most likely to fail, many legal experts have predicted because it's taking on a 125-year Supreme Court precedent.

Trump's success record at Supreme Court mixed

Trump’s record at the Supreme Court during his first administration was mixed.

For example, it took the president three tries before the court approved a version of his ban on travel from specific nations, including five majority-Muslim countries.

The court allowed Trump to fire the head of the Consumer Finance Protection Bureau but not to end the Deferred Action for Childhood Arrivals program for immigrants who came to the U.S. as children or to include a question about citizenship on the 2020 census.

Although the first Trump administration tipped the balance of justices farther to the right, it had the worst record at the Supreme Court of any White House since at least the Roosevelt administration, according to data developed by law professors Rebecca Brown and Lee Epstein for a 2023 article published in Presidential Studies Quarterly.

It's unclear how rulings will play out in his second term in office. Responding to the recent rulings by district judges hearing challenges to Trump's mandates, White House press secretary Karoline Leavitt said judges “in liberal districts across the country are abusing their power to unilaterally block President Trump's basic executive authority.”

Leavitt said the administration will continue to fight the challenges, predicting Trump will “ultimately be vindicated.”