The 117^th Congress has finished its work, putting the judicial-appointment process on hold until the next Congress begins on January 3, 2023. Here’s a judicial-confirmation recap. You can also check the Judicial Appointment Tracker, which is regularly updated and provides current and comparative data for the previous six presidencies on seven features of the appointment process.

Vacancies. Republicans controlled the Senate for six of President Barack Obama’s years in office, allowing confirmation of just 22 nominees to life-tenured federal courts in his last two years. As a result, 12.6 percent of the judiciary was vacant when President Donald Trump took office and, by Biden’s January 2021 inauguration, Republicans had reduced that to 5.3 percent. Judicial retirements, however, outpaced appointments, and today 9.4 percent of the judiciary is vacant.

Confirmations. In his first year, Biden appointed a larger share of the judiciary than all but President Ronald Reagan. That confirmation pace slowed in 2022, with Biden appointing a smaller share of the judiciary than all but Obama. Overall, Biden appointed 11.3 percent of the federal judiciary in his first two years, barely topping the average of 11.2 percent. A majority of Biden’s judicial picks, and 86 percent of those for the U.S. Court of Appeals, replaced Democratic appointees.

Opposition. Previous Heritage Foundation reports (here and here) have documented how Democrats changed several long-standing confirmation-process norms during the Trump administration. From 1789 to 2016, for example, only 7 percent of confirmed judicial nominees had any opposition. This jumped tenfold to 73 percent under Trump and was 96 percent during the last two years. Any opposition, however, does not distinguish between a nominee’s receiving just a few negative votes and one whose confirmation requires the vice president to break a 50–50 tie. Before Trump took office, confirmed judicial nominees received an average of just 1.2 negative votes. This average level of opposition soared to 22.9 negative votes under Trump and to 38.4 under Biden.

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Another confirmation-process norm had been the absence of routine partisan opposition. Rare conflicts over individual nominees did occur but, before Trump took office, senators of one party voted against an average of just 2 percent of judicial nominees by a president of the other party. That jumped twentyfold as the average Senate Democrat voted against 41 percent of Trump nominees. It looks like that radical shift is becoming a pattern, with the average Senate Republican’s voting against 79 percent of Biden nominees. Fifteen Republicans opposed more than 90 percent of Biden’s judicial nominees and 46 of the 50 Republicans in the 117^th Congress voted against a higher percentage of Biden nominees than Trump’s top Senate opponent.

Looking ahead, a president’s third year in office is typically a strong one for judicial appointments. In 2019, for example, the Senate confirmed 102 of Trump’s nominees, the second-highest annual total in American history. When the 117^th Congress formally adjourns, the 45 pending judicial nominees (21 in the Judiciary Committee, 24 on the full Senate’s agenda) will be returned to President Joe Biden. He will quickly renominate most or all of them, and they will pick up where they left off in the Senate’s process. For example, 16 of the 21 nominees (13 district, three appeals) have already had a hearing and so will be ready for a Judiciary Committee vote. The committee had voted on five of those nominees (two district, three appeals) but an evenly divided vote kept them in the committee. That won’t be a problem next year since Democrats will have a numerical majority in the Senate and on each committee.

Shortly after the 2020 election, more than 70 liberal organizations joined a statement urging Biden to prioritize appointing judges who would further his political objectives. As the 2020 statement plainly stated: “All the [Biden] administration’s priorities from preserving the Affordable Care Act, voting rights, women and reproductive rights, communities of color, LGBTQ communities, workers, the environment, consumers, and key civil rights hang in the balance in the courts.” Halfway through his term, Biden is following their plan.