Joe Biden's Judicial Legacy

Summary

The NPR Politics Podcast: Joe Biden's Judicial Legacy Release Date: January 8, 2025

In this episode of The NPR Politics Podcast, hosts Asma Khalid, Carrie Johnson, and Tamara Keith delve into President Joe Biden's judicial legacy as his term approaches its conclusion. The discussion encompasses Biden's judicial appointments, comparisons with former President Donald Trump's tenure, the push for diversity within the judiciary, the ideological balance of the courts, and the implications for future administrations.

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1. Overview of Biden's Judicial Appointments

President Biden has successfully appointed a significant number of federal judges during his four-year term. Carrie Johnson highlights, “Biden managed to appoint and the Senate managed to confirm 235 federal judges. Those are lifetime tenure judges” (01:23). This substantial number positions Biden’s appointments as one of his most enduring legacies, shaping the federal judiciary for generations to come.

2. Comparing Biden’s and Trump’s Judicial Appointments

The conversation transitions to a comparison between Biden and former President Trump regarding judicial appointments. Carrie Johnson notes, “By the numbers, Biden managed to confirm one more judge than Trump did. Trump had 234” (01:58). However, the hosts emphasize the qualitative differences. While Trump utilized Senate Majority Leader Mitch McConnell’s strategy to maintain vacancies, allowing him to secure more significant appointments, Biden focused on a broader range of judicial positions, particularly in lower courts (02:26).

Tamara Keith adds, “President Trump was able to nominate and appoint about a quarter of the judiciary. And now President Biden has about a quarter of the judiciary total” (02:56). This parity underscores Biden's effective judicial strategy, despite different political dynamics.

3. Advancing Diversity in the Federal Bench

A central theme of Biden’s judicial legacy is the increased diversity within the federal judiciary. Carrie Johnson elaborates, “Biden appointed more women, more Black women, the first four Muslim American federal judges, and 12 openly LGBTQ judges” (03:16). This commitment extends beyond personal demographics to professional backgrounds, incorporating public defenders, civil rights lawyers, and individuals from organizations like the ACLU and the Innocence Project.

The hosts discuss the broader implications of this diversity, with Tamara Keith stating, “Diversity... improves judicial decision making by ensuring that more viewpoints are heard” (04:31). This not only enhances the judiciary's responsiveness to varied communities but also fosters public trust in the legal system.

4. Ideological Balance of the Judiciary

While Biden's appointments have significantly increased the number and diversity of federal judges, their ideological impact differs from Trump’s appointments. Carrie Johnson observes, “Trump appointed many, many judges... locking in a conservative supermajority for maybe a generation” (07:23). In contrast, Biden has not significantly shifted the ideological leanings of the judiciary but has focused on ensuring a well-rounded and diverse bench.

Tamara Keith raises concerns about the future, noting, “With Trump coming back, he doesn’t have the sort of running start that he had the first time around” (10:18). The hosts discuss the potential for future judicial appointments to influence significant legal decisions, even if Biden’s appointees predominantly fill lower court positions.

5. Impact on Future Judicial Decisions and Administrations

The discussion highlights how Biden’s district court appointments will influence the majority of legal cases, as the Supreme Court handles only a fraction of disputes annually. Carrie Johnson emphasizes, “Most cases are decided by the lower courts, voting rights cases, gun cases, reproductive rights cases, and all of those judges are going to matter” (07:50).

Additionally, the hosts consider the strategic maneuvers of judges, such as retirement timing based on presidential elections, which can impact future judicial compositions. Carrie mentions, “Judges are political animals sometimes... they at least understood enough to get past Senate confirmation” (09:16).

6. Special Counsel's Report on Donald Trump

A significant portion of the episode is dedicated to the Special Counsel's report on former President Donald Trump. Carrie Johnson provides an overview: “Jack Smith delivered a report with two volumes—one on the January 6th election interference case and another on obstruction of justice related to classified documents” (12:13).

The hosts discuss the legal battles surrounding the report's release, noting that Judge Eileen Cannon has temporarily blocked the Justice Department from releasing the classified documents portion. However, the DOJ aims to release the January 6th findings pending appellate approval (12:13).

Carrie underscores the report's importance: “It is part of the regulations that created the special counsel that he or she is supposed to deliver a final report” (14:29). The public release of this report is crucial for historical transparency and accountability, especially for those affected by the events of January 6, 2021.

7. Concluding Thoughts on Biden’s Judicial Legacy

As the podcast wraps up, the hosts underscore the lasting impact of Biden’s judicial appointments. The emphasis on diversity and the sheer number of lifetime appointments position Biden to influence the judiciary's landscape profoundly. While the ideological balance remains relatively stable compared to Trump's conservative shift, Biden’s focus on lower courts ensures that a wide array of legal issues will be addressed through a more diverse and representative judiciary.

Tamara Keith concludes, “President Biden... was very focused on working with Democrats in the Senate who were able to maintain control of the Senate, which allowed him the ability to get this many” (06:20). This collaborative effort between the White House and Senate Democrats highlights the strategic planning behind Biden’s judicial appointments, aiming for a balanced and inclusive federal bench.

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Timestamps:

• [01:23] Carrie Johnson on number of judicial appointments
• [01:58] Comparison between Biden and Trump's judicial appointments
• [02:26] Tamara Keith on McConnell's role
• [02:56] Tamara Keith on total judiciary makeup
• [03:16] Carrie Johnson on diversity in appointments
• [04:31] Tamara Keith on the benefits of diversity
• [07:23] Discussion on ideological makeup
• [07:50] Carrie Johnson on the importance of lower courts
• [09:16] Carrie Johnson on judges' strategic retirements
• [10:18] Tamara Keith on future judicial influences
• [12:13] Carrie Johnson on Special Counsel's report
• [14:29] Importance of releasing the Special Counsel's report
• [06:20] Tamara Keith on Biden's collaboration with Senate Democrats

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This comprehensive examination provides listeners with a nuanced understanding of President Biden’s influence on the federal judiciary, the strategic maneuvers across administrations, and the ongoing legal narratives shaping the United States' political landscape.

Transcript

[Asma Khalid]

This message comes from St. Jude Children's Research Hospital. Active and retired federal employees and military staff can support St. Jude during the 2024 combined federal campaign. Visit stjude.org cfc and donate now using the code 10560.

[Carrie Johnson]

Hey, NPR Politics, this is Elias in San Francisco, California. I'm heading out to the airport right now. I'm, I'm leaving for a five month solo journey through Spain.

[Tamara Keith]

Wow.

[Carrie Johnson]

I turn 21 tomorrow and this will be my first time leaving the country.

[Unknown Speaker]

This podcast was recorded at 1:20pm Eastern Time on Wednesday, January 8th of 2025. Things may have changed by the time.

[Asma Khalid]

You hear it, but I'll be a.

[Carrie Johnson]

Year older and long on my way by then. Okay, here's the show.

[Unknown Speaker]

Happy birthday.

[Tamara Keith]

Happy birthday. Elias, you are jumping into the deep end.

[Carrie Johnson]

Please have some chocolate con churros for me. Oh, yes.

[Unknown Speaker]

Hey there. It's the NPR Politics podcast. I'm Asma Khalid. I cover the White House.

[Carrie Johnson]

I'm Carrie Johnson. I cover the Justice Department.

[Tamara Keith]

And I'm Tamara Keith. I also cover the White House.

[Unknown Speaker]

And today on the show, a look back at President Biden's judicial legacy as he prepares to leave the White House. And Kerry, I want to begin the conversation with you because you cover the Justice Department. So let's start by just looking at the numbers. How many judges did Biden appoint during his four years as president?

[Carrie Johnson]

This came in just under the wire, but Biden managed to appoint and the Senate managed to confirm 235 federal judges. Those are lifetime tenure judges. Those people can sit with good behavior for the rest of their lives if they choose. So that's going to be one of Biden's most enduring legacies moving forward.

[Unknown Speaker]

A lot of people you mentioned a record. I recall that President Elect Trump boasted that during his first term he had broken every record on appointing judges. So can you help us understand what the comparison between Trump's first term and Biden's term?

[Carrie Johnson]

Sure. So by the numbers, Biden managed to confirm one more judge than Trump did. Trump had 234. So Biden may have bragging rights, but there is a difference here. Trump had many more appeals court nominees and he had more Supreme Court nominees as well, in part because with the help of then Senate Leader Mitch McConnell, McConnell in the Senate kept open many, many vacancies for Trump to fill when he came into office.

[Tamara Keith]

And it was remarkable. Trump kept, he kept commenting on his good fortune like it just happened for him. But in fact, it was Mitch McConnell who had a he was On a mission to prevent Obama from getting more judges confirmed and allow the Republican president then to shape the judiciary. President Trump was able to nominate and appoint about a quarter of the judiciary. And now President Biden has about a quarter of the judiciary total.

[Unknown Speaker]

You're saying out of the total makeup.

[Tamara Keith]

Of judges, the total federal bench. Yeah.

[Unknown Speaker]

Kerry, can you talk to us in more detail about who exactly Biden named? I recall when President Biden first took office, he pledged to diversify the federal bench. When you look at the profiles, the statistics of who he appointed, did he accomplish that goal?

[Carrie Johnson]

In large part, he did. Asma, you and Tam will both remember that on the campaign trail, Biden promised to appoint the first black woman to the Supreme Court. He certainly did that. Justice Ketanji Brown Jackson. He also also appointed more than 150 women to the bench. More black women than any other president had appointed in the past combined. The first four Muslim American federal judges ever and 12 openly LGBTQ judges. Biden also made really a priority, professional diversity. By professional diversity, I mean not just former prosecutors and people who were partners at big law firms who make a lot of money. Biden appointed a bunch of public defenders. He also appointed a bunch of civil rights lawyers and people at organizations who don't normally go directly onto the bench. I'm talking here about places like the American Civil Liberties Union, unions, the center for Reproductive Rights, the Brennan center for justice, and even the Innocence Project. Those are backgrounds we don't often see on the federal courts, or at least we have not often seen since the days of Jimmy Carter. Since we're talking so much about Jimmy Carter. This week I spoke with Lina Zworenstein. She works at the Leadership Conference for Civil and Human Rights.

[Unknown Speaker]

Diversity, both in terms of personal background as well as professional background, improves judicial decision making by ensuring that more viewpoints are heard. And we know that it also helps build the public trust in the judiciary to have judges who look like and come from communities beyond that. I think it serves as an important message to future generations that people who look like them or who have experience like them can serve in these high positions of power. So it really does seem like this will be a lasting legacy of President Biden's administration.

[Tamara Keith]

Yes. And President Biden, who is all about legacy and has been thinking about the mark that his presidency will make since well before he realized he'd be a one term president, was very focused on this. You know, he is a former chairman of the Senate Judiciary Committee back when he was a senator for 36 years. And he was very focused on working with Democrats in the Senate who were able to maintain control of the Senate, which allowed him the ability to get this many. They held an event at the White House last week to celebrate hitting this landmark. Senator Schumer was there, the Democratic leader, now the minority leader, and Senator Dick Durbin, who was the chairman of the Judiciary Committee. And Schumer said that he called Durbin a nudge, which is a Yiddish word to mean like, this guy just kept bugging me to bring up these judges for confirmation votes. It takes time to move these people through the process. So this was a partnership between the White House and also the Senate that, you know, Senate Democrats put a priority on essentially beating Trump's number.

[Unknown Speaker]

All right. Well, on that note, let's take a quick break, and we'll be back in a moment.

[Asma Khalid]

This message comes from NPR sponsor Saatva. Founder and CEO Ron Rudson shares the story of how he got started creating Saatva. In 2007, 2008, I went out and I bought the most popular luxury mattresses. I tore them apart and I realized based on the raw materials, cost and the analysis that I had done, that I was able to sell that level mattress, but with a very affordable price. To learn more, go to saatva.com NPR Wait, wait, don't tell me. Fresh Air up first, NPR News. Now Planet Money TED Radio Hour Throughline, the NPR Politics podcast Code Switch, embedded books we love Wildcard are just some of the podcasts you can enjoy. Sponsor free with NPR, get all sorts of perks across more than 20 podcasts with the bundle option. Learn more at plus.NPR.org and we're back.

[Unknown Speaker]

And I want to move beyond the numbers and statistics and talk more about the ideological makeup of the judiciary. And, you know, look, I know, of course, individual judges behave distinctly, but, Carrie, there is no doubt that Donald Trump, during his first term in office, was able to secure a more conservative Supreme Court. And I am curious if there is anything that Biden has done these last four years that you see shifts the overall ideological bent of the judiciary.

[Carrie Johnson]

Yeah, Trump appointed many, many judges. He had three appointments to the Supreme Court, locking in a conservative supermajority for maybe a generation. And Biden has managed to get a lot of judges on the bench during his four years, but he hasn't been able to shape the ideological makeup or reshape the ideological makeup of some of the lower courts or the Supreme Court. And I think that may make a difference in the long run. You know, Biden has managed to install A lot of on the district courts in particular. And we know that district court judges matter because the Supreme Court only takes a tiny number of disputes every term, just a tiny number, fewer than 100 for a lot of years now. And so most cases are decided by the lower courts, voting rights cases, gun cases, reproductive rights cases, and all of those judges are going to matter. It's also worth noting that some judges appointed by former President Carter are still on the bench even now. Most of them are on senior status, no longer actively hearing lots of new cases. But they are still making a point and making some decisions. So these judges can really have a long arc.

[Tamara Keith]

Were the judges that President Biden was able to appoint, were they replacing Republican appointed judges or were they more replacing Democratically appointed judges?

[Carrie Johnson]

Well, there's lots of evidence that some judges time their retirement announcements based on the party affiliation of the president who can appoint their successor. In fact, we've had some judges who suggested before the November election that they would retire, rescind their retirement, presumably because they didn't want President elect Trump to be naming their replacements. That happens all the time. Judges are political animals sometimes, even though they claim they're not, they certainly understand the process. They at least understood enough to get past Senate confirmation. And so they can do math like everybody else.

[Unknown Speaker]

Tam, I want to ask you about what we could expect to see possibly in these next four years, because you covered Donald Trump's first administration and, you know, I hear what Kerry's saying about the record number of judges appointed. But one question I've had in my mind is, you know, is this sort of a Biden interregnum? Right. Like Trump was there for four years. Biden has had these four years. But Trump is coming back and he will now have an opportunity to shape the judiciary as he wants, won't he?

[Tamara Keith]

He is coming back. He doesn't have a bunch of open positions in the judiciary to fill that Mitch McConnell left for him. So he doesn't have the sort of running start that he had the first time around. But, but certainly there could be another Supreme Court justice that retires or dies. Trump certainly has a chance. I think the other thing to think about in this time period is if you remember the first time President Trump was in office, a lot of his policies were taken to court and sometimes they were thrown out. Like the initial effort on the travel ban from Muslim majority countries. It took a couple of tries and it was tangled up in the courts. And we can expect that there will be challenges to some of the things that President Trump tries to do. And perhaps we don't know which judges will be assigned, but it's possible that some of these judges will end up with those cases. It's also possible, which, as we've seen throughout Biden's presidency, that judges that Trump appointed will end up getting cases.

[Carrie Johnson]

And, you know, one judge can matter. I just want to point out that one judge who has really mattered is Eileen Cannon, who sits on the district court in South Florida. She was appointed by Trump rather late and confirmed rather late in Trump's first term. And yet she was handed the Mar A Lago classified documents case, which she very famously threw out against Trump on the first day of the Republican National Convention last year. And so one judge can make a difference when it counts.

[Unknown Speaker]

Carrie, since you mentioned a case against Donald Trump and since you are here with us on today's show, I wanna ask you about some of the news we are hearing about the special counsel's report about President Elect Donald Trump. I will confess I was sort of reading through things, but a lot of it feels very confusing. Can you just fill us in on what we should know?

[Carrie Johnson]

Sure thing. So remember that after the election, Jack Smith, who obtained two indictments against Donald Trump, basically walked away from those cases because of a longstanding Justice Department view that sitting presidents cannot be prosecuted. And so both those cases are dead as to Trump. But Smith still had an important job to finish, and that was writing a final report and delivering it to the Attorney General, Merrick Garland. We now know that Smith delivered that report yesterday, and it has two volumes. The first volume talks about the January 6th election interference case against Trump here in Washington, D.C. and the second volume talks about the indictment against Trump and two of his longtime aides that accused them of obstruction of justice for taking classified materials out of the Trump White House and then refusing to hand them over when the FBI asked for them back. And so the two defendants in South Florida, Walt Nauta and Carlos de Oliveira, those are the longtime Trump aides, they filed a court action in Florida this week seeking to bar the Justice Department from releasing the report. And guess who got that case? Eileen Cannon, the very judge you were just mentioning. So even though that case was no longer before Judge Cannon because it's on appeal, she basically has issued a temporary block against the Justice Department blocking the DOJ from releasing the report. Well, we now know today DOJ says it does not plan to publicly release the part of the Jack Smith report that deals with classified documents, in part because there are two men who still could be prosecuted for that. So it's not fair to them. It would prejudice them to throw out a whole bunch of public information about the decisions that Jack Smith made in that case. But what the DOJ does want to do is release the federal election interference part of that report, the January 6th part of that Jack Smith report. And it's now waiting to see if it has authority, an okay from the appeals court to do that. We could see that report depending on how quickly the appeals court acts, maybe later this week or next week. Certainly it's gotta come out before Trump takes office. So to be continued.

[Unknown Speaker]

Kerry, why is it so important that the public seize this special counsel report?

[Carrie Johnson]

You know, it's part of the regulations that created the special counsel that he or she is supposed to deliver a final report. And in recent times, we've seen those. The public has seen those. We saw what Robert Hur said about President Joe Biden in that classified documents investigation. We've seen what Robert Mueller said about Trump during his first term in office. And so it kind of is the last word for history on why prosecutors decided to do what they did and any potential disagreements they may have had with DOJ brass about how they went about their work in this case. Because it seems there will not be a prosecution of Donald Trump over the events of January 6, 2021. This report may be the coda and people who were injured on January 6, 2021, people like Washington, D.C. police officer Danny Hodges have implored the attorney general and President Biden to make this report public.

[Unknown Speaker]

Well, let's leave it there for today. I'm Asma Khalid. I cover the White House.

[Carrie Johnson]

I'm Kerry Johnson. I cover the Justice Department.

[Tamara Keith]

And I'm Tamara Keith. I also cover the White House.

[Unknown Speaker]

And thank you all, as always, for listening to the NPR Politics podcast.

[Asma Khalid]

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