Judicial vacancies during the Biden administration

From Ballotpedia
Jump to: navigation, search
FederalCourtsPortalMastheadImage.png
Fedbadgesmall.png

U.S. Federal Courts
Vacancies and Nominations
Judicial vacancies in federal courts • Judicial vacancies during the Biden administration • Federal judges nominated by Joe Biden • Federal judicial appointments by president
ABA ratings of presidential federal judicial nominees • ABA ratings during the Biden administration • ABA ratings during the Trump 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.

HIGHLIGHTS
  • Of the 870 life-term federal judicial positions, Biden inherited 46 vacancies. This was the lowest number of federal judicial vacancies at the beginning of a presidency since the inauguration of George H.W. Bush in 1989 when Bush inherited 37 vacancies. For a breakdown of these numbers by presidency, see: Vacancies by term.
  • The 46 vacancies represented roughly one-twentieth of all life-term judicial positions (5.29%).
  • Biden had the lowest percentage of circuit court vacancies and the fourth-highest percentage of district court vacancies among recent incoming administrations.

    • The Federal Judicial Vacancy Count

    Key:
    (Numbers indicate % of seats vacant.)
    0%1%-9%
    10%-24%25%-40%
    More than 40%


    See also: The Federal Judicial Vacancy Count 12/1/2021

    The vacancy level remained at blue in November 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

    Two 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.

    New nominations

    President Joe Biden (D) has announced 11 new nominations since the October 2021 report.


    New confirmations

    There have been no new confirmations since the October 2021 report.

    As of December 1, 2021, the Senate has confirmed 28 of President Biden's judicial nominees—19 district court judges and nine appeals court judges—since January 2021.


    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]

    Age Years of
    service
    65 15
    66 14
    67 13
    68 12
    69 11
    70 10

    Total appointments by president

    The following chart shows the total judgeship appointments made by each president from 1901 to 2021.

    Blue slips and the nomination process

    A blue slip is the name for a piece of paper a home-state senator returns to the chair of the Senate Judiciary Committee to show his or her approval of a federal judicial nominee. The United States Constitution does not mandate the use of blue slips, but they are considered a senatorial courtesy. Although United States senators have the power to prevent a federal judicial nominee from receiving a hearing and subsequently being confirmed, they are not required to state a reason.[6]

    117th Congress

    Sen. Dick Durbin (D-IL) became chair of the Senate Judiciary Committee in February 2021.[7]

    On March 1, 2021, in an interview with The New York Times, Durbin said that he would follow the precedent established by his predecessors—Sen. Lindsey Graham (R-S.C.) who served as the committee chair in the 116th Congress and Sen. Chuck Grassley (R-IA) who served as chair during the 115th Congress—in following the blue slip tradition for district court nominees but not for circuit court nominees. Durbin said that he might reconsider following the blue slip tradition with district court nominees.[8][9][10][11]


    See also

    Footnotes

    1. ↑ 1.0 1.1 United States Courts, "Archive of Judicial Vacancies," accessed February 2, 2021
    2. ↑ The American Presidency Project, "Statement on signing the Judicial Improvements Act of 1990," December 1, 1990
    3. ↑ Congress eliminated three temporary judicial positions for district judge positions in Hawaii, Kansas, and Ohio under provisions of the Consolidated Appropriations Act of 2010. These eliminations become effective when the judges serving in those positions leave active judicial service. In 2010, Judge Kathleen M. O'Malley was the first judge whose position was eliminated upon her elevation from the Northern District of Ohio to the United States Court of Appeals for the Federal Circuit; the temporary positions in Hawaii and Kansas are still active.
    4. ↑ 4.0 4.1 Cornell University's Legal Information Institute, "28 U.S. Code § 371 - Retirement on salary; retirement in senior status," accessed December 19, 2016
    5. ↑ United States Courts, "FAQs: Federal Judges: What is a senior judge?" accessed December 19, 2016
    6. ↑ American Constitution Society, "The Blue Slip Tradition," accessed October 16, 2021
    7. ↑ U.S. Senate Committee on the Judiciary, "Members," accessed February 4, 2021
    8. ↑ The New York Times, "Durbin, New Judiciary Chair, Warns Republicans on Blocking Judges," March 1, 2021
    9. ↑ POLITICO, "Senate Dems take a page from GOP in judicial nominee battles," February 17, 2021
    10. ↑ San Francisco Chronicle, "U.S. Senate judiciary chair to retain GOP's 'blue slip' system of selecting some judges," February 18, 2021
    11. ↑ Bloomberg Law, "Senators Can’t Veto Biden Circuit Picks, Maintaining GOP Policy," February 17, 2021
    v • e
    Biden Administration
    Overviews
    Cabinet
    Members not requiring Senate confirmation

    Members confirmed by the Senate

    v • e
    Ballotpedia
    About
    Editorial


    Retrieved from "https://ballotpedia.org/wiki/index.php?title=Judicial_vacancies_during_the_Biden_administration&oldid=8596273"