Writer: Matthew Pennington
Editor: Rachel Kuolt
Spring 2024
Barring any extreme or unforeseen circumstances, the 2024 presidential election stage is set: a rematch between Joseph Biden and Donald Trump. These men have drastically different visions for what they want the United States to become and extremely contrasting plans to accomplish their goals. While they certainly intend to enact change through congressional policy and executive action, they both have their eyes set on what I argue to be the biggest prize and instrument for long-lasting impact: the federal judiciary. Whoever prevails in November will have immense power to shape all levels of the federal judiciary over the next four years.
The Constitution rests solely on judicial appointments with the president and confirmation powers with the United States Senate. These judges and justices often serve for decades, shaping federal law and policy long after the president who appointed them is out of office. This can be seen by the fact that 11 judges appointed by President Ronald Reagan are still in active service within the federal judiciary. When we take a look at President Biden and President Trump, they both have 170 and 245 judicial appointments respectively as of December 2023 (United States Courts). Judges appointed by these men have produced landmark decisions on cases ranging from affirmative action to abortion, and immigration. For example, the Supreme Court eliminated affirmative action in Students for Fair Admission v. Harvard, and it was a single Texan judge who blocked the use of abortion medication nationwide in FDA v. Alliance for Hippocratic Medicine. Both candidates and their parties are acutely aware of how important control over the federal judiciary is.
Senate Democrats have made it abundantly clear that they want to quickly close the gap in appointments between President Trump and President Biden before voters head to the polls this November (Ruger, 2024). Also, this is why several Republicans, such as Senate Minority Leader Mitch McConnell, have made it their top priority in the past to put a large number of conservative judges on the bench (Lueders, 2024). President Biden, President Trump, and party leaders alike understand the power that the federal judiciary, in particular the Supreme Court, wields in today’s political system.
In recent years, appointments and confirmations to the United States’ highest court have become increasingly political and ugly. Senate Republicans blocked former President Obama’s appointment of Merrick Garland to the high court in 2016, used the “nuclear option” to confirm current Justice Neil Gorsuch with a simple majority, and then rushed through Amy Coney Barrett’s confirmation in 2024 following Ruth Bader Ginsburg’s death. All of this culminated in today’s 6-3 conservative lean on the high court (Elving, 2018).
2024 appears likely to have the same stakes this nation faced back in 2016. Two of the high court’s oldest and most conservative members, Justice Samuel Alito and Justice Clarence Thomas, are both in the political calculus of this upcoming presidential election (Bolton, 2023). If President Biden were to win reelection, it could give him the chance to pick one or both of their replacements in the event either of them retires or dies, while if former President Trump were to win, it could give Justice Alito or Justice Thomas the opportunity to retire. Both justices would likely prefer to be replaced by someone with a similar judicial mindset and knowing that a conservative, originalist justice would most likely take their place would give them the perfect chance to step aside. When the time comes, whoever is able to replace these justices will have the power to shape the legal landscape of America for years, if not decades, to come.
While it is easy and necessary to make simple political comparisons between President Trump and President Biden before November, it is imperative that people take into account that one of these men will have the ability to shape all levels of the federal judiciary, likely including the Supreme Court itself. While people may head to the polls simply thinking their vote will only influence the next four years of presidential policy, their vote will also influence decades of judicial outcomes and legal decisions for generations to come.
References
Bolton, A. (2023, June 28). Supreme Court: Retirement talk surrounding Thomas, Alito raises
stakes for 2024 election. The Hill. https://thehill.com/homenews/senate/4070483-thomas-alito-futures-raise-stakes-for-2024-election/
Elving, R. (2018, June 29). What Happened with Merrick Garland in 2016 and Why It Matters
Judgeship Appointments by President. (2023).
Lueders, B. (2024, April 10). The Future of the Federal Judiciary Is on the Ballot This
November, Too. The Bulwark; Bulwark Media. https://www.thebulwark.com/p/future-federal-judiciary-biden-judges
Ruger, T. (2024, April 8). Senate Democrats look to close judicial confirmation gap. Roll Call;
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