The Fight for the Judiciary Continues, and We’re Ready for It

By: Coby Dolan, Legislative Director

Let’s face it. Reading the news today can certainly be a downer. In just a short time, President Donald Trump used his executive authority to reverse some of President Joe Biden’s signature achievements—especially concerning the environment. But there’s one thing he can’t undo: Biden’s impact on the federal judiciary. Even though Biden is no longer in the White House, his impact on our courts will endure for generations.

In just four years, the U.S. Senate confirmed 235 Article III federal judges nominated by President Biden to lifetime appointments, including the historic confirmation of Justice Ketanji Brown Jackson to the U.S. Supreme Court, 45 circuit court judges, and 187 district court judges. This currently represents more than 25 percent of the federal bench and is the largest number of confirmed judges in a four-year term since President Jimmy Carter. As Senate Judiciary Chairman Dick Durbin (D-IL) stated in early January, “The Committee advanced highly qualified, diverse judicial nominees who will be a frontline defense of the rule of law for a generation.”

This is a major victory—especially as we rely on the courts to stop some of President Trump’s most egregious policy actions. While many of us understand the threat the current ultraconservative supermajority of the U.S. Supreme Court poses to the rule of law, environmental protections, and the power of the modern administrative state to protect public health and the environment, few of us recognize how much of that work is settled in lower courts. It is important to celebrate the hard-fought progress made balancing our federal bench with highly qualified, fair-minded judges.

How did we get here?

In the first Trump administration, we worked across a diverse coalition of justice-oriented organizations to bring attention to the lack of qualifications and ultraconservative and deregulatory backgrounds of Trump’s nominees to the federal bench, including the 50 Federalist Society members confirmed to the Supreme Court and circuit courts. President Trump cemented the Supreme Court’s new conservative supermajority, whose justices have taken a hatchet to environmental protections and the power of federal agencies to issue them. In just a few years, the Supreme Court gutted wetlands protections in Sackett v. EPA, made it more difficult for federal agencies to regulate greenhouse gas emissions in West Virginia v. EPA, and ended the Chevron doctrine, a longstanding precedent that allows federal agencies to regulate on behalf of the American people in Loper Bright Enterprises v. Raimondo.

After the 2020 election, we knew we had a prime opportunity to counteract some of the Trump Administration’s gains in the judiciary. We re-imagined what kind of candidates should be put forward for the bench, prioritizing nominees who were honest, independent, respected science, and understood the power of agencies to enforce our environmental laws. It meant turning away from the centuries-old path of nominating judges who were well-connected lawyers with corporate and prosecutor backgrounds and, instead, prioritizing demographically diverse candidates with backgrounds in the public interest. As our sister organization’s motto says, “The earth needs a good lawyer,” at Earthjustice Action, we also know it needs a good judge.

We then went to work advocating for these types of candidates with receptive Senate offices and fighting to keep the Senate’s attention on filling as many vacancies as possible. Earthjustice Action amplified this work by connecting nearly 30,000 people directly to their elected officials through phone banking efforts and robust digital campaigns, reaching over 9 million constituents nationwide to urge their Senators to take the judiciary seriously. Additionally, we launched an online educational campaign to demystify the federal judicial nomination process and keep our followers updated on the progress in real-time – highlighting the critical intersection with the environment and public health.

By the numbers: 

Our efforts paid off, and the final numbers and quality of those nominees speak for themselves. The Biden-Harris Administration, working with Senate Democratic leadership, confirmed 235 lifetime federal judicial nominees to the bench, one more than Trump’s 234 in his first four years.

This was no small feat. Thanks to the obstructionist efforts of the McConnell-led Republican Senate in 2015 and 2016, Trump took advantage of 112 federal court vacancies at the start of his administration, including holding open a Supreme Court seat for nearly a year. He also filled 17 circuit court and 86 district court vacancies that the Obama administration should have been allowed to fill. Conversely, Biden had fewer than 50 vacancies at the start of his administration, including only 2 circuit courts and 43 district courts.

The diversity of these new judges is equally remarkable. Nearly 100 have public interest experiences in their backgrounds, including public defenders, civil rights and labor lawyers, reproductive freedom and voting rights lawyers, and some even have public interest environmental experience. And the demographic diversity statistics are equally incredible:

• Nearly 60 percent are people of color;
• Nearly 40 percent are women of color;
• Nearly two-thirds are women;
• 12 are out LGBTQ+ people, tying the two-term record set by Obama;

Additionally, President Biden named:

• More Black women to federal circuit courts (13) than all his predecessors combined (8);
• More than a third of all Black woman federal judges in U.S. history;
• More than 40 percent of all AAPI lifetime judges in U.S. history;
• More Hispanic judges than Obama appointed over two terms, and more than three times as many as Trump during his first term;
• As many Native Americans to the bench as all of his predecessors combined.

Looking Ahead

We’re ready for this next fight. We know it will be long, but we’ve done it before. Earthjustice Action will remain vigilant and engaged, ceding no ground to those seeking to pack the courts with judges who will reverse long-fought gains and force their extreme agenda on us all. We’ll closely follow who’s getting nominated to our courts, analyze their judicial philosophy and experience, and tirelessly fight alongside our partners to block nominees who pose a threat to the law, individual rights, and the environment.