Appointments to the federal bench are among a president’s most profound long-term legacies. Judges serve far longer than the presidents who appoint them and decide cases involving the most important and consequential issues of the day. The closing months of President Joe Biden’s term provide a good opportunity to evaluate his judicial appointment record in the context of how the process has changed over the years.

The Structure of the Judicial Branch

Article III of the Constitution vests the “judicial power of the United States” in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Thus, only the Supreme Court is a direct creature of the Constitution, while Congress is empowered by the Constitution to create lower federal courts.

Congress has created three Article III courts and has the power to change their size, structure, and judgeship distribution. The U.S. District Court currently has 663 judgeships organized into 94 districts; Congress last created new district court positions in 2003. The U.S. Court of Appeals has 179 judgeships across twelve geographical circuits and one, the Federal Circuit, with specific subject-matter jurisdiction; Congress last created new appeals court positions in 1990, and it transferred one judgeship from the DC Circuit to the Ninth Circuit in 2008. Congress created the Court of International Trade in 1980 with nine judgeships.

The Constitution specifies the length of terms for the president and members of Congress, but not for judges on these Article III courts. They serve “during good Behaviour,” that is, until they leave voluntarily or are impeached and convicted of “Treason, Bribery, or other high Crimes and Misdemeanors” under Article II, Section 4.

The Judicial Appointment Power

The Constitution gives to the president the power to nominate and, subject to the Senate’s “Advice and Consent,” the power to appoint federal judges. In practical terms, the Senate advises the president whether he may appoint someone he has nominated by granting or withholding its consent.

The Founders saw the requirement of Senate approval as a “silent operation” that “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters.” They expected, however, that “it is also not very probable that his nomination would often be overruled.” The Senate would not, for example, oppose a nominee simply because of “the preference they might feel to another” and would need “special and strong reasons” to reject a president’s nominees.

Since 1980, three-quarters of new vacancies on Article III courts have occurred by judges taking “senior status,” which opens their position for a new appointment and allows them to continue serving with a reduced caseload. Over the same period, presidents have appointed an average of forty-six judges to Article III courts each year.

The Judicial Confirmation Process

For more than two centuries, the process by which the Senate fulfilled its role of advice and consent was generally consistent with the Founders’ prescription: the Senate deferred to the president in most cases, and conflicts focused on individual nominees. Several longstanding confirmation norms, however, have radically changed in the last two decades.

The current state of the judicial confirmation process did not come about by chance. In 2001, at the beginning of the George W. Bush administration, more than forty Senate Democrats met in Florida with liberal academics such as Harvard’s Laurence Tribe to, as the New York Times reported, “forg[e] a unified party strategy to combat the White House on judicial nominees.” They discussed options for how to “change the ground rules” of the confirmation process. Actions taken since that conference have made the current process very different from the one the Founders envisioned by upending at least four judicial confirmation norms.

The first historic norm was that the Senate confirmed a president’s nominees with little or no opposition. Only 3.7 percent of the nearly 3,800 Article III judges confirmed between 1789 and 2016 had any opposition. While that figure jumped to 31.6 percent under President Barack Obama, most of those nominees received only token opposition. The big jump came during President Donald Trump’s term, when 77.8 percent of his judicial nominees were opposed and average negative votes more than tripled.

Second, and related, the Senate confirmed most judicial nominees efficiently. Only 4.1 percent of the judges confirmed between 1789 and 2000, for example, had a recorded vote. The rest were approved either by unanimous consent or a voice vote. There is a big practical difference between unanimous/voice-vote confirmation on one hand and recorded votes on the other. Unanimous consent requires only one senator from each party, while a voice vote occurs with the senators who happen to be present, and these approvals take only a minute or two. Recorded votes require the presence of all senators and often take more than 45 minutes to complete. Historically, the Senate used a recorded vote when senators wanted to express their opposition.

Confirmations by recorded vote jumped to 58.6 percent during the George W. Bush administration. The fact that 86.4 percent of those recorded votes were unanimous, however, shows that this change did not take place because Bush nominees were controversial, but because the opposing party wanted to make confirmation more laborious and time-consuming. It was part of a deliberate strategy by Senate Democrats to challenge Bush’s judicial nominees, Leader Tom Daschle (D-SD) said at the time, “by any means necessary.”

The third historic norm that has suffered in recent years is the absence of systemic partisanship in judicial confirmations. Between 1901 and 2016, the typical senator of one party voted against an average of only 1.8 percent of judicial nominees from the other party. During the Trump administration, Democratic senators each voted against an average of 41.1 percent of judicial nominees, while Republicans have each opposed an average of 76.2 percent of Biden’s nominees. Seven of the forty-two Democrats (16.7 percent) who served during Trump’s full term voted against a majority of his judicial nominees; thirty-nine of the forty-three Republicans (90.7 percent) who have served since Biden took office have opposed a majority of his judicial nominees.

Finally, there is the complex and often misrepresented history surrounding filibusters of judicial nominees. Senate rules have since 1806 required a supermajority to invoke cloture, or end debate, on legislation. The opportunity for such extended debate, in fact, has become one of the distinguishing features of the Senate as a legislative body. This supermajority requirement allows a group of senators lacking the votes to defeat a bill outright to prevent passage by blocking any final vote at all. A filibuster occurs when an attempt to end debate, such as a cloture vote, fails. While the filibuster has long been and remains a defining feature of the Senate’s legislative process, however, it was never a part of the confirmation process until George W. Bush’s first term.

In 1949, the cloture rule was amended in a way that covered a broader range of legislative measures but also, inadvertently, could include nominations. But between 1949 and 2000, the Senate took a separate cloture vote on only ten of the 2,055 judges it confirmed to Article III courts. During George W. Bush’s first term, Senate Democrats forced twenty-three cloture votes on thirteen individual nominees, and five of those nominees were never confirmed. Republicans forced a cloture vote on eight of Obama’s first-term nominees, and only one of them failed to be confirmed later.

Democrats then used the so-called “nuclear option” in November 2013. This was a parliamentary maneuver to avoid the 60-vote cloture requirement, so named because its use would significantly disrupt the Senate’s ordinarily cooperative culture. Republicans filibustered three Obama nominees to the DC Circuit that would have given it a Democratic majority. Then-Democratic Leader Harry Reid (D-NV) made a “point of order” asking that “three-fifths” in the cloture rule be interpreted to mean “simple majority for nominations to all judicial and executive branch positions except the Supreme Court. The Senate voted 52-48 to accept that new interpretation.

The cloture rule’s text, which remained unchanged, still provided for forcing cloture votes even though, like recorded votes for unopposed nominees, they had no purpose except making the confirmation process more difficult. Democrats forced cloture votes on 74.7 percent of Trump’s judicial nominees, and Republicans have done so on 81 percent of Biden’s.

Trump’s and Biden’s Appointment Records

Trump had more than 100 judicial vacancies to fill when he took office in 2017. Republicans had been in charge of the Senate during Obama’s final two years and virtually shut down the judicial confirmation process. Only twenty-two judges were confirmed during the 114th Congress (2015-16)—less than one-fourth the average number confirmed in a two-year period and, as a percentage of the size of the judiciary, the lowest two-year confirmation rate in American history.

Republicans were also in the majority during Trump’s final two years, with a dramatically different result. They confirmed 149 judges during the 116th Congress, leaving just forty-six judicial positions vacant when Biden took office, the smallest percentage of the judiciary in more than thirty years.

The Senate had an even Democrat-Republican split during the first two years of the Biden administration, and Democrats have just a one-vote majority in the current 118th Congress. Despite significantly changed confirmed process norms and such a narrow partisan margin, however, Biden has so far appointed 205 judges to Article III courts—equal to Trump’s total at the same point in his administration. This has required serious party discipline. While twenty-three Republicans voted against at least one Trump judicial nominee, only two Democrats have voted against any Biden nominees: Senator Joe Manchin (D-WV) has voted against thirteen, and Senator Kyrsten Sinema (I-AZ) has opposed two.

The Heritage Foundation’s Judicial Appointment Tracker shows that vacancies are again down to forty-six, compared to seventy-two at this point in Trump’s administration, including only a single appeals court vacancy. Presidents from Reagan to Trump appointed an average of fourteen judges between August 13 and the end of their first term. If Biden matches that average, he will have appointed 219 judges, or 25.5 percent of the judiciary, by the end of his presidency. This would be below Trump’s appointment of 27.2 percent of the judiciary; since Franklin Roosevelt, presidents have appointed an average of 28.5 percent of the judiciary by the end of their first term.

The judicial appointment process has departed significantly from the design of America’s Founders; senators often appear to oppose nominees for the purpose of confronting the appointing president rather than disapproving the nominees’ qualifications. This may, in fact, be the “new normal” going forward. Presidents, however, can still press through those obstacles to significantly impact the federal judiciary long into the future.