Justice is blind – or so the saying goes. But is it really? Judges and justices – whether state or federal, lower court or supreme – are supposed to be impartial and non-partisan, and many argue they are. But how unbiased can one really be? And how blind is Lady Justice when politicians alternately rely on or fear the judiciary, depending on who holds the majority?
Chuck Schumer and the “Bulwark Against Trump”
According to Senate Majority Leader Chuck Schumer (D-NY), Democrats have pulled a page from the Republican playbook. Donald Trump makes his triumphant return to the White House in January, and by then, Republicans will hold slim majorities in both chambers of Congress. But that doesn’t mean Biden’s legacy is simply undone.
“I don’t know exactly what Trump will do,” Schumer told Politico. “But I can tell you this: The judiciary will be one of our strongest – if not our strongest – barrier against what he does.”
“When we started out, we knew it would be a very difficult job to do more than Trump had done,” Schumer continued. “But we did. We got 235 – more than a quarter of the federal judiciary was appointed by our Senate and by the president.”
The New York Democrat, who will relinquish his Senate Majority Leader title in January, said it was crucial to appoint liberal judges because of all the “MAGA judges” Trump managed to seat. Now that the election is over and even the most deluded progressive understands that Trump is coming back and that he’s bringing a Republican trifecta with him, the rushed appointment and confirmation of left-wing judges is, to use Schumer’s words, “more important than it’s ever been.”
“They’re going to come after everything. They have so many different parts of MAGA: the people who are anti-women’s rights; the people who are anti-environment; the people who are anti-working-people rights and union rights; the people who are anti-the consumer. They’re going to use the judiciary in every way they can,” Schumer concluded. Does that sound like the words of a man who thinks the judiciary is – or, for that matter, should be – non-partisan?
The Judicial Landscape Today
As of December 20, 2024, there were 679 district court judges: 386 were appointed by Democrats and 260 by Republicans. There are also 179 courts of appeals judges, of who 89 were appointed by Republicans compared to 88 by Democrats. But Democrat-appointed judges hold majorities on more of the federal appeals courts (7-6) and the circuit courts (8-4) than their ideological counterparts.
Joe Biden (Photo by Kevin Dietsch/Getty Images)
Biden does have Trump beat in judicial appointments – but he’s bookended by his foe and destined to fall behind. The Heritage Foundation has tracked judicial appointments by administration dating back to Ronald Reagan, who saw 166 judges confirmed by December 23 of his fourth year in office. George H. W. Bush racked up 193 confirmations by that same point, and, except for the Obama years, that number grows each administration. Bill Clinton got 203, George W. Bush got 204, and Obama broke that upward trend with just 173.
Donald Trump and Joe Biden, however, brought it back with a vengeance. Trump saw 235 judicial confirmations by the end of his first term, and Biden topped that by one. But the soon-to-be-former president’s record may not be the victory it seems. First, Biden is bowing out after a single term, and Trump is coming back for a second. Even if the once and future president – the only to be elected to two non-consecutive terms aside from Grover Cleveland – doesn’t manage more than a couple of judicial nominations in his second term, he’ll have Biden beat. Thus far, no president has seen more confirmations than Reagan at 402 across both terms. If Trump even comes close to repeating his first-term numbers, he’ll set a new record easily.
But then there’s the US Supreme Court. Biden got a single justice confirmed compared to Trump’s three – and with three justices in their 70s, it’s possible, if not probable, that Trump will get at least one more in his second term. Also, while Democrat-appointed judges command more majorities in the other federal courts, conservative, Republican-appointed justices lead the Supreme Court 6-3. Since lower court rulings can be and often are reversed by the High Court, one might argue controlling SCOTUS is far more important than the rest.
Still, there is some merit to Schumer’s boast. Many cases never make it to the very top, and so those lower-court rulings often stand without further challenge.
Biden Balks at Adding Judges
The political games are hardly limited to Democrats, of course. Congress passed a bipartisan bill to add 66 federal judges, only to see it vetoed by Biden – but the Republican-controlled House didn’t pass it in what one might call bipartisan timing.
Had it come to fruition, the JUDGES Act would have added new federal judgeships in 13 states in two-year increments through 2035. It enjoyed bipartisan support initially but floundered a bit during the election cycle. Supporters say the current caseload is simply too much, and the current judges are spread thin. Biden argued, however, that the true motivation was more political. “S. 4199 seeks to hastily add judgeships with just a few weeks left in the 118th Congress,” he wrote as he vetoed the bill. “The House of Representative’s [sic] hurried action fails to resolve key questions in the legislation.” Of course, in reality, the bill would have split the 66 judges out across the next decade, putting some, if not most, appointments well out of Trump’s or the 119th Congress’ reach.
Still, Biden’s fear of handing Trump more judicial appointments as a welcome-back gift is telling. If judges aren’t expected to rule according to the ideology of the presidents who appoint them, then why does it matter?
Blind Justice or Partisan Politics?
As for the JUDGES Act being truly bipartisan, Biden may be right about the motives and timing of the House GOP. The legislation unanimously passed the Democrat-controlled Senate in August. However, House Speaker Mike Johnson (R-LA) didn’t bring it to vote until after Trump won the 2024 election. Then, it passed 236-173, with most Democrats voting against it. How many senators – on either end of the political spectrum – voted for the bill because they thought their candidate would win, and how many truly cared about overworked judges and underrepresented cases? How many in the House only voted for the bill because Trump had already won by that point?
Trump’s win certainly does seem a likely explanation for the 173 Democrats who opposed the bill, considering their Senate counterparts all supported it when it seemed likely to most Democrats that Kamala Harris would be president. And by Chuck Schumer’s own admission, Trump’s win is what made the record number of confirmed liberal judges so important – to form a “bulwark against Trump.” Justice may be blind, but the judges who decide it certainly aren’t.