Having appointed more justices to the federal court than his predecessor, former President Donald Trump, President Joe Biden is in a strong position to close out his term in office.

However, the Democrat will be unable to duplicate Trump's reform of the appellate courts, which issue the most significant decisions. This year, Trump, the Republican nominee for president, particularly succeeded in gaining seats on appellate courts and the US Supreme Court that had been controlled by liberal or moderate justices in favor of hardline conservatives.

Because of this, conservative plaintiffs have gained favorable legal status in the federal courts. These litigants have been able to get court rulings that restrict Biden's policies regarding student debt forgiveness, LGBTQ rights, the environment, and health care throughout broad regions of the nation, even nationwide.

There were two open circuit seats when Biden became president, but there were seventeen appeals court vacancies and one vacant Supreme Court seat when Trump took office.

President of the JCN, Carrie Severino, stated that "the vacancies Trump did have to fill were, overall, much more significant." The JCN backs the efforts of conservative judges being confirmed.

With regard to the appeal courts' active-status judges, Trump was able to "flip" three circuits: the 11th Circuit, which covers Florida, Georgia, and Alabama, has rendered crucial decisions that have limited voting rights for ex-felons in Florida and upheld state restrictions on gender-affirming care. Now that Biden has taken back control of the 2nd Circuit, one of those three circuits, there will be a slight majority of Democratic-appointed active-status judges compared to Republican-appointed justices on all US circuit courts.

For the plaintiffs whose cases are heard in US district courts—the great majority of which will never be appealed—Biden's legacy there, where he is expected to eclipse Trump's record, will be significant. However, the Supreme Court hears only a small percentage of cases that are brought before the justices, meaning that federal appeals courts typically have the last say in issues that are appealed. The precedents that circuit courts establish are likewise binding on all subordinate courts within their respective areas.

Federal judicial selection expert Russell Wheeler, a non-resident scholar in the Brookings Institution's Governance Studies program, stated that "the courts of appeals make law and the district courts don't – their decisions are binding on nobody."

Because Biden and Trump have placed such a high priority on appointing judges to the circuit courts, the outcome of the next election will have an impact on who controls the Senate and how many vacancies there are.

The University of Richmond School of Law professor Carl Tobias predicted that the appeals court would continue to get attention no matter who was elected. "There will be a large number of district openings to fill. Simply said, it is... Unlike the broader policy-making that occurs at the appellate level, they are unable to bind anybody, not even inside the walls of their own courtroom.”

A large number of the conditions that allowed Trump to restructure the court resulted from the devious actions of Senate Republicans, under the direction of Majority Leader Mitch McConnell.

GOP dominance of the Senate during the latter two years of the Obama administration, combined with a Senate procedural known as "blue slip," allowed Republicans to obstruct a number of President Barack Obama's candidates, leaving seats free for Trump to eventually fill.

Then came the most audacious Senate Republican move of all: the party's 11-month obstruction of Obama's choice for the Supreme Court, Circuit Judge Merrick Garland, who would have taken Justice Antonin Scalia's seat and moved the court to the left. Trump was able to both maintain and increase Republican dominance on the Supreme Court by filling the vacancy left by the retirement of the relatively moderate Justice Anthony Kennedy and the passing of liberal Justice Ruth Bader Ginsburg in 2020.

Trump's selection of circuit judges to the appeal bench has frequently influenced cases that make it to the Supreme Court. These include DC Circuit Judge Gregory Katsas, a former Trump White House attorney who has written influential opinions, including a dissent in a case involving a Capitol riot that foreshadowed the eventual Supreme Court ruling that curtailed those prosecutions, and 5th Circuit Judge James Ho, a former Texas solicitor general who has written vehement opinions on abortion and other culture war issues. They also include Judge Lawrence VanDyke of the 9th Circuit, one of the ten Trump appointments who have made the appeals court less consistently liberal. VanDyke has been known to criticize his colleagues when they dissent and has provided important votes in favor of conservative causes.

As part of the last push before an election that may give Republicans control of the Senate, the White House, or both, the White House named three nominations on Wednesday.

Even while Biden lacked some of Trump's advantages, he and legislative Democrats ran a very efficient confirmation apparatus.

Tobias stated, "It appears that Biden will be able to surpass Trump overall—not by a significant margin, but by a respectable amount." "However, the judges of the district court will decide that."

Biden's record is noteworthy; even if a few of his nominations fail to cross the finish line by the end of his term, he can match Trump's overall number in the Senate, where Democrats have had lower margins than Republicans have ever held under Trump for half of his administration.

Phil Brest, special assistant to the president and senior counsel, told CNN that "exceeding the previous administration's four-year totals is certainly within reach, despite significant structural impediments, including the longest 50-50 Senate in history and a fraction of the vacancies inherited by the previous administration."

Brest said, "The government of Biden and Harris will keep trying to fill every opening. It recognizes the crucial role judges play in defending the liberties enjoyed by every American."

Democrats have bragged about the diversity they have brought to the federal bench, emphasizing the increase in the number of former public defenders, civil rights attorneys, and public interest attorneys. They have also highlighted the traditional diversity of gender, race, and ethnicity as well as the so-called "professional diversity."

According to a spokesman for a senior Democratic member, the strategy has included appointing more Black women to circuit court judgeships than all other presidents combined, and more women of color to the bench under Biden than under any previous president. In the last four years, more former public defenders have been confirmed to circuit courts than under any preceding president.

After being approved, Circuit Judge Nancy Abudu—a former voting rights lawyer and Biden appointee—became the first Black woman to serve on the 11th Circuit. Julie Rikelman, who defended abortion rights in the 2022 case that resulted in the overturning of Roe v. Wade by the Supreme Court, was named by Biden to the 1st US Circuit Court of Appeals. Notably, Obama was able to confirm former public defender Candace Jackson-Akiwumi to the 7th Circuit, a post left empty by a Republican appointee.

Tobias stated, "I believe the goal was to counter Trump's 54, both qualitatively and quantitatively." "That really is just wiping out all the previous records for those dimensions of diversity. That will be quite a legacy for Biden."

The interactions around the Senate "blue slip" demonstrate how much attention both parties pay to the circuit courts.

By mandating that home state senators provide a real blue slip of paper before a judicial candidate moves forward in the Senate, blue slips effectively grant such senators veto power over judicial appointments. Then-Senate Judiciary Chair Chuck Grassley, a Republican, established a "circuit exemption" to the blue slip rule in 2017 after Democrats honored them under the Obama administration. This action benefited Trump. According to the Congressional Research Service, he was able to confirm 17 judges despite the opposition of at least one senator from each of their home states. Additionally, because Democrats refused to reinstate the blue slip requirement for appellate judges, three of Biden's appellate appointees were confirmed despite the opposition of at least one senator from each of their home states.

Through that move, Trump was able to significantly influence circuit courts that have historically favored the left side, completely overturning some of them and narrowing the party-appointee divide in others.

"The impact that the appeals courts can have is something that both Democrats and Republicans recognize is more significant than having more district judges," Tobias stated.

Overall, based on information gathered by Wheeler, 35% of Trump's appointments to the circuit court succeeded judges nominated by the opposition party, but just 19% of Biden's appointees to the appellate court filled a position held by a Republican appointee.

Severino remarked, "The 9th Circuit looks very different today," alluding to the ten justices that Trump appointed to the expansive court, which hears appeals from nine western states. Despite the objections of at least one senator from the home state, six of them were confirmed.

The dynamic in circuit courts is also influenced by the quantity of semi-retired judges who continue to serve in what is known as senior status.

The "en banc" rehearings, when a circuit court's entire roster of sitting judges considers decisions rendered by a three-judge panel on the circuit, are not attended by senior judges. However, considering how infrequently cases are considered en banc or taken up by the US Supreme Court, senior judges can sit on the three-judge circuit panels that serve as a case's first stop in the appeal process. These panels often provide the last word on a legal issue within a circuit's jurisdiction.