Judicial vacancies during the Biden administration
President Joe Biden (D) inherited 46 Article III lifetime federal judicial vacancies requiring a presidential nomination when he was inaugurated on January 20, 2021. Across 890 federal judicial positions, there was an average of 75 vacancies a month from January 2021 to December 1, 2021.[1]
This page provides an overview of recent vacancies, nominations, and confirmations; the number of vacancies by month; the number of nominations and confirmations by month; historical analysis of the state of the federal judiciary at the start of Biden's term compared to that of his six immediate predecessors; and an analysis of possible judicial openings during Biden's term of office.
For monthly updates on vacancies and appointments in the federal judiciary, see the federal judicial vacancy count. For a list of individuals nominated to fill these vacancies, click here.
The Federal Judicial Vacancy Count
| Key: | |
| (Numbers indicate % of seats vacant.) | |
| 0% | 1%-9% |
| 10%-24% | 25%-40% |
| More than 40% | |
The vacancy level remained at blue in December 2021. The total vacancy percentage was 8.5 percent, and there were 74 vacancies out of 870 Article III judicial positions.
A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here.
| Key: | |
| (Numbers indicate % of seats vacant.) | |
| 0% | 1%-9% |
| 10%-24% | 25%-40% |
| More than 40% | |
Though the United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here for more information.
New vacancies
Nine judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.
- Judge Francisco Besosa assumed senior status on the U.S. District Court for the District of Puerto Rico.
- Judge Timothy Burgess assumed senior status on the U.S. District Court for the District of Alaska.
- Judge Henry Floyd assumed senior status on the U.S. Court of Appeals for the 4th Circuit.
- Judge Lucy H. Koh left the U.S. District Court for the Northern District of California upon her elevation to the U.S. Court of Appeals for the 9th Circuit.
- Judge William Kuntz assumed senior status on the U.S. District Court for the Eastern District of New York.
- Judge Michael Mosman assumed senior status on the U.S. District Court for the District of Oregon.
- Judge Susan Richard Nelson assumed senior status on the U.S. District Court for the District of Minnesota.
- Judge Cynthia Rufe assumed senior status on the U.S. District Court for the Eastern District of Pennsylvania.
- Judge Brooks Smith assumed senior status on the U.S. Court of Appeals for the 3rd Circuit.
New nominations
President Joe Biden (D) has announced 11 new nominations since the November 2021 report.
- Nancy Gbana Abudu, to the United States Court of Appeals for the 11th Circuit
- J. Michelle Childs, to the United States Court of Appeals for the District of Columbia Circuit
- Jessica Clarke, to the United States District Court for the Southern District of New York
- Sherilyn P. Garnett, to the United States District Court for the Central District of California
- Hector Gonzalez, to the United States District Court for the Eastern District of New York
- Kenly Kiya Kato, to the United States District Court for the Central District of California
- Nina Morrison, to the United States District Court for the Eastern District of New York
- William Pocan, to the United States District Court for the Eastern District of Wisconsin
- Jennifer Rochon, to the United States District Court for the Southern District of New York
- Fred W. Slaughter, to the United States District Court for the Central District of California
- Sunshine S. Sykes, to the United States District Court for the Central District of California
New confirmations
There have been 12 new confirmations since the November 2021 report.
- Lucy H. Koh, to the United States Court of Appeals for the 9th Circuit
- Jennifer Sung, to the United States Court of Appeals for the 9th Circuit
- Jane Beckering, to the United States District Court for the Western District of Michigan
- Mary Dimke, to the United States District Court for the Eastern District of Washington
- Samantha Elliott, to the United States District Court for the District of New Hampshire
- Maame Ewusi-Mensah Frimpong, to the United States District Court for the Central District of California
- Shalina Kumar, to the United States District Court for the Eastern District of Michigan
- Linda Lopez, to the United States District Court for the Southern District of California
- Katherine Menendez, to the United States District Court for the District of Minnesota
- Jinsook Ohta, to the United States District Court for the Southern District of California
- Jennifer L. Thurston, to the United States District Court for the Eastern District of California
- David Herrera Urias, to the United States District Court for the District of New Mexico
As of January 1, 2022, the Senate had confirmed 40 of President Biden's judicial nominees—29 district court judges and 11 appeals court judges—since his term start in January 2021. To review a complete list of Biden's confirmed nominees, click here.
Map of federal district court vacancies
Vacancies by month
The following chart shows the total number of judicial vacancies at the start of each month under the Biden administration beginning in January 2021. This number comes from vacancies in the U.S. Court of Appeals, U.S. District Courts, U.S. Court of International Trade, U.S. Court of Federal Claims, and the U.S. Supreme Court.[1] This chart is updated at the start of each month with new vacancy data.
Nominations and confirmations by month
At the start of each month, Ballotpedia charts the number of new nominations, confirmations, and ongoing nominations during the Biden administration. These numbers come from nominations and confirmations in the U.S. Court of Appeals, U.S. District Courts, U.S. Court of International Trade, and the U.S. Supreme Court. The ongoing nominations figures are calculated using the number of nominees awaiting action in the U.S. Senate. This chart is updated at the start of each month with new nominations and confirmations data.
Historical context
Scope
The scope of the historical analysis presented below is limited to those judicial positions on Article III courts in which confirmed nominees serve a life term. As of 2021, there were 870 of those positions. They include positions on the Supreme Court of the United States, the U.S. Court of International Trade, U.S. courts of appeal, and U.S. district courts. Regarding the district courts, we did not include four federal district judges who serve on U.S. territorial courts, as these district judges serve fixed terms of service.
By definition, a federal judge is a judge serving on any federal court. There is, however, considerable variation in the term length for these federal judges. Some federal judges are appointed for a life term, consistent with Article III of the United States Constitution, but there are other judges on Article III courts who serve a fixed term of office. Some judges serve on courts created under Article I of the Constitution. Some are local judges in Washington, D.C., who are still subject to presidential nomination and confirmation by the U.S. Senate.
Vacancies
Vacancies at the start of term
On January 20, 2021, President Joe Biden (D) inherited 46 Article III federal judicial vacancies. As of his inauguration, there were two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy on the U.S. Court of International Trade.
So how did Biden compare with his predecessors on inherited vacancies? Biden had the third-lowest number of vacancies to fill since 1980. The two presidents with fewer seats to fill were President Ronald Reagan (R) with 34 and President George H.W. Bush (R) with 37. Biden's 46 inherited vacancies represent roughly one in every 20 life-term judicial positions (5.29%).
On December 1, 1990, the Judicial Improvements Act of 1990 was signed into law by President George H.W. Bush. The act created 85 new federal judicial positions, but faced with an opposition Congress, the first Iraq War in 1991, and a failed re-election bid in 1992, President Bush never got to fill many of these new appointments.[2][3]
The charts below show the vacancy data by both circuit courts and district courts. The data show Biden had the lowest percentage of circuit court vacancies and the fourth-highest percentage of district court vacancies among recent incoming administrations.
Vacancies throughout a term
Vacancies occur for a number of reasons. Some judges choose to retire from judicial service entirely without taking senior status, and some judges resign prior to retirement. Others are elevated to a different federal judicial position, which creates a vacancy in the court on which that judge served previously. Some judicial vacancies are created when new positions are designated by statute. Some judges have been impeached and removed from judicial service. Sometimes judges die during the course of their active judicial service.
The most common reason a vacancy is created is when a judge elects to take senior status. When a judge takes senior status—which is a strictly voluntary decision, as a judge cannot be compelled to do so—this creates a vacancy that is filled via a presidential nomination and Senate confirmation. Under the Rule of 80, which is governed by provisions of 28 U.S.C. § 371, beginning at age 65, a judge may retire at his or her current salary or take senior status after performing 15 years of active service as an Article III federal judge.[4] As a judge's age increases until 70 years old, the number of years of service decreases, so long as the age and years of service added together equals 80.[5]
Federal judges are eligible for senior status at the following combined ages and years of service:[4]
