How can we measure the influence of President Biden's court of appeals judges?
Recent media reports have been discussing President Joe Biden’s influence on the federal judiciary, including the rapid pace of nominating and ensuring confirmation of federal judges. And it’s been something of a proxy for “influence “ or “impact.” It’s true that more judges participating in argument and voting in panels, particularly judges on the federal courts of appeals, is one way of measuring influence.
But another way to measure influence could be to examine written appellate opinions. And it appears President Biden’s court of appeals judges are publishing opinions (at least, in their names) less frequently than other recent judges.
This is hard to measure comparatively across years, of course. For instance, the workloads of the court can change (consider the decline in cases before the Federal Circuit in recent years, for instance). The number of filled seats for active judges, and the workload of senior judges, can change. Consider, for example, that new appointees to a court that is shorthanded probably have much more work than new appointees to a court that has no vacancies, and a court with many active senior judges may have less of a workload of new appointees than a court without many such judges. The practices on each circuit vary wildly in terms of how often decisions are published per curiam or with summary orders rather than in the name of a judge. Getting up to speed if one was confirmed in the middle of a pandemic (say, summer of 2021) may have looked different than previous eras. In short, there are myriad reasons for differences.
Regardless of the reason, there may still be changes in output. I dug into the Westlaw database to try to collect some information and make some comparisons. Using the “JU( )” field (and later, the “DIS( )” and “CON( )” fields joined with the “PA( )” field), I looked at the 10 judges President Biden had confirmed in the first year of his presidency (really, calendar year 2021). (I excluded now-Justice Ketanji Brown Jackson, who was elevated to the Supreme Court in the middle of this window.) All judges were confirmed 14 to 20 months ago. I tried to exclude judges sitting by designation, names shared with others judges, Westlaw’s odd way of handling en banc, and so on, with a quick perusal of results and adjustment to totals.
These 10 Biden-appointed court of appeals judges from 2021 have combined for around 140 majority, named-author opinions (regardless of whether these opinions were “precedential” or "non-precedential”) through mid-February 2023. That’s around 14 per judge. (These 10 judges have also combined for around 31 concurring or dissenting opinions.)
I then went to President Donald Trump’s nominees. They had some similarities: there were 12 court of appeals nominees in 2017, confirmed between 14 and 21 months before February 16, 2019. These 12 judges combined for around 415 majority, named-author opinions. That’s around 34 per judge. (These 12 judges also combined for around 60 concurring or dissenting opinions.)
President Barack Obama had only three federal appellate judges confirmed in his first year. They combined for around 80 majority opinions by mid-February 2011.
As I mentioned, these are rough figures, likely off by a few in one direction or another, as the Westlaw fields are imprecise and I had to cull some data on my own with quick checks. There are probably other ways of looking at the data, including the number of arguments held, the length of time from argument to an issued opinion on a case by case basis, and so on. It’s also a very short window so far, and it’s possible that once the years stretch one we’ll see some smoothing out of the trends. But so far, Biden’s court of appeals appointees have been publishing fewer majority opinions in their names. That’s not to say their influence may not be felt elsewhere, particularly in shaping opinions authored by other judges, in per curiam or unsigned opinions, and so on. It also is not a measure of the influence of any particular opinion, as not all opinions are the same, and some have more impact than others. As I mentioned, the reason has many complexities one could consider. But on this one dimension of frequency, however, so far, there’s been a different pace.