Power

Here’s One Thing Biden and Democrats Can Do Before Trump’s Return

It’s time for Joe Biden to stuff the bench.

Icons of judges, a clipboard, and a gavel for a story saying Biden should rush to confirm more judges
The Biden administration needs to fill every vacant judicial seat to mitigate the harms of the incoming Trump administration. Cage Rivera/Rewire News Group

This piece first appeared in our weekly newsletter, The Fallout.

One of the Joe Biden administration’s underreported successes has been prioritizing the confirmation of a diverse cohort of judges to the federal judiciary. The administration’s federal courts strategy is the beginning of the Democrats’ long-game approach that recognizes the judiciary is fully politicized, and that the longer the party pretends otherwise, the more doomed their policies are. It’s also an important response to the conservative legal movement’s near-total capture of the federal courts, accelerated during Donald Trump’s first administration.

And if the Biden administration has any hopes of that strategy bearing out in the long-term, it needs to finish the job before January and fill every open judicial seat. It’s time to stuff the bench.

So far the Senate has confirmed 216 Biden judicial nominations and is on pace to nearly meet the number of confirmed Trump judges—234. It’s not just the number of confirmed Biden judges either. More than 25 percent of Biden’s confirmed district court judge appointees are Black, nearly 20 percent are Asian American, Native Hawaiian, and Pacific Islander, and more than 60 percent are women, according to the Leadership Conference on Civil and Human Rights. These judges also come from diverse professional backgrounds in civil rights and public defense. It’s a phenomenal record and a real bright spot from the administration.

More importantly, those Biden judges represent an important backstop for what’s to come during Trump’s second term. A federal judiciary in greater political balance creates opportunities for advocates to tie up any and all terrible Trump policies in litigation. Will these lawsuits ultimately be successful? Maybe. Maybe not. But they will drain resources, buy time, and create avenues for advocates and electeds to push back against the authoritarianism that is already here.

There are currently more than two dozen pending judicial nominations, with more to come according to judicial advocacy organizations. It’s time to get cracking and stuff the federal bench while Democrats still can.