By Micah Schwartzman and David Fontana / Special To The Washington Post
Since President Biden’s inauguration, more than a dozen federal judges have announced that they plan to take senior status or retire. Total judicial vacancies have grown from 46 to more than 60 (out of nearly 900 seats), and that number is likely to increase substantially over the next few months, as judges who didn’t want President Trump to replace them vacate their seats. By the end of his term, Trump had appointed nearly a third of all active judges, and now Biden will have his own chance to reshape the judiciary.
Since Democrats control both the White House and the Senate, and because the filibuster has been abolished for judicial appointments, Biden has significant freedom to choose whom to appoint. Progressive groups have urged him to pick nominees who are diverse in terms of race, gender and professional background: all important goals. But there’s another characteristic that Democrats — unlike Republicans — have long neglected: age.
Trump maintained his support among mainstream Republicans in part by appointing conservative judges, but his appointments also stand out for their youth. His nominees to the federal courts of appeals, for example — the tier just below the Supreme Court — were the youngest of any president since at least the beginning of the 20th century. According to our calculations, drawing on data compiled from the Federal Judicial Center (the research agency of the U.S. federal courts), his appellate judges were, on average, 47 years old when nominated; five years younger than President Obama’s, who were, on average, about 52 years old. In just one term, Trump appointed 54 appellate judges, of which six were in their 30s, 20 were under 45, and only five were over the age of 55.
By comparison, in two terms, Obama nominated 55 appellate judges, with none in their 30s, only six under 45, and 21 were over the age of 55.
At a glance, these age differences might not seem like much. But given that such positions are lifetime appointments, they will give Republicans a significant advantage over the long term. And the pattern of GOP presidents choosing younger judges did not begin with Trump, even if he took the practice to a new level. Republican presidents since Ronald Reagan have appointed all of the youngest 25 federal appellate judges (at the time of their nomination), 45 of the youngest 50 and 76 of the youngest 100.
We can do some rough calculations to put the age advantage for Republican-appointed judges in perspective. Recall that Obama and Trump nominated almost the same number of appellate judges (55 and 54, respectively). Assume these judges all serve to the same retirement age, which is usually about 68 years old for federal judges. If you factor in their ages at nomination — and assume other factors such as early death don’t affect one group more than the other — Trump’s judges will serve on the bench for 270 more years than Obama’s judges. Take it a step further: Assuming federal appellate judges decide, on average (and conservatively), at least several hundred cases per year, Trump’s judges will decide tens of thousands more cases than their Obama-appointed counterparts. To put it bluntly: The age of judges matters.
But Democrats still aren’t getting the message. At a Brookings Institution event in January, former attorney general Eric Holder touted racial and ethnic diversity — and diversity of professional background — but also said judges should only be appointed if they are 50 years old or older.
It would be a serious mistake for Biden to follow that last piece of advice, and he would be repeating an error that Obama made. The Obama administration made substantial progress in diversifying the bench, but took a misguided approach when it came to age.
In an attempt to depoliticize judicial nominations, Obama mostly appointed highly experienced sitting judges and federal prosecutors during his first term as president. Senate Republicans rejected the olive branch, and in fact escalated obstruction of his nominees. Biden also wants to lower the temperature of partisan conflict, but there is no reason to think choosing older judges will have that effect.
Nominating younger judges is also crucial for developing leaders on the federal bench, including future Supreme Court justices. When presidents look for nominees to elevate to the high court, they usually select judges from the federal appellate courts. For example, Neil Gorsuch was a mere 38 years old when nominated (by President George W. Bush) to become an appellate judge, Brett Kavanaugh was 41 (also Bush), and Amy Coney Barrett was 45 (Trump). When later elevated to the Supreme Court they were 49, 53 and 48, respectively (average age: 50). Meanwhile, because Obama selected older judges, Biden will find only three Democratically appointed judges across the entire federal courts of appeals who are at that age or younger.
Younger federal judges have more time to build up a jurisprudence — a body of legal values, principles and judgments — as well as a professional network of other judges, lawyers and clerks, who can develop, share and amplify their legal views. Republicans have long understood this: Many of their most famous and influential appointees were put on the appellate bench at young ages, including Frank Easterbrook (nominated at age 36), Michael Luttig (36), Kenneth Starr (37), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), Richard Posner (42), Antonin Scalia (46) and John Roberts (47).
If Democrats hope to shape the law for the next generation, they, too, need younger judges who have both the energy and a sufficiently long tenure on the bench to leave lasting legacies. Consider the example of Justice Sonia Sotomayor, who was one of President Bill Clinton’s youngest appellate nominees, at age 43; she was 54 when Obama nominated her to the Supreme Court in 2009. Over the past two decades, she has developed a distinctive and powerful voice on the bench. It’s unlikely she would have had done so had she been nominated to the appellate court in her early-to-mid 50s.
The Biden administration has made an admirable commitment to diversifying the bench; signaling his intention to depart from Trump’s example. Not a single one of Trump’s 54 appointments to the appellate courts was African American. But there is no trade-off between youth and diversity. If anything, there are more women and more members of minority groups represented in the legal profession now than at any time in the past. At least when it comes to putting judges on the bench, this president can have it all. He can diversify the bench while at the same time appointing people who will be influential for decades, narrowing the partisan age gap in the judicial branch.
Micah J. Schwartzman is the Hardy Cross Dillard professor of law at the University of Virginia. David Fontana is Samuel Tyle Research Professor at the George Washington University Law School.
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