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President Biden announces fifth slate of federal judicial nominees

President Joe Biden (D) announced his intent to nominate his fifth slate of judicial nominees on June 30, which included six individuals to Article III judgeships with lifetime terms:

• Toby Heytens, to the United States Court of Appeals for the 4th Circuit

• Jennifer Sung, to the United States Court of Appeals for the 9th Circuit

• Jane Beckering, to the United States District Court for the Western District of Michigan

• Patricia Tolliver Giles, to the United States District Court for the Eastern District of Virginia

• Shalina Kumar, to the United States District Court for the Eastern District of Michigan

• Michael Nachmanoff, to the United States District Court for the Eastern District of Virginia

To date, Biden has nominated 30 individuals to federal judgeships. Seven of the nominees have been confirmed. There were 82 Article III vacancies in the federal judiciary as of July 1.

As of his inauguration in January 2021, Biden inherited 46 Article III vacancies: two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy on the U.S. Court of International Trade. Biden announced his first federal judicial nominees on March 30.

Biden’s announcement on June 30 also included two nominees to Article I courts:

• Armando Bonilla, to the United States Court of Federal Claims

• Carolyn Lerner, to the United States Court of Federal Claims

Article I courts are federal courts organized under Article I of the United States Constitution. They are created by Congress and have differing levels of independence from the executive and legislative branches. Examples of Article I courts include the U.S. Tax Court, the U.S. Court of Appeals for the Armed Forces, the Court of Military Commission Review, the U.S. Court of Appeals for Veterans Claims, the U.S. Court of Federal Claims, and the U.S. Bankruptcy Courts.

Biden also announced his intent to nominate one individual to the local D.C. superior court:

• Sean Staples, to the Superior Court of the District of Columbia

Washington, D.C., has two local courts: the superior court—a trial court of general jurisdiction—and a court of appeals. Justices on these courts are nominated by the U.S. president after recommendation from the District of Columbia Judicial Nomination Commission; they then face confirmation by the U.S. Senate. D.C. judges are appointed to 15-year renewable terms.

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Judicial selection in Washington, D.C.

Judicial vacancies in federal courts

Judicial vacancies during the Biden administration



Comparing 2020 presidential and senatorial vote share by party

Image of donkey and elephant to symbolize the Democratic and Republican parties.

Ballotpedia compared the performance of Joe Biden (D) and Donald Trump (R) in the 2020 presidential election to Democratic and Republican Senate candidates in each state.

Thirty-five U.S. Senate elections were held in the general election. Biden outperformed Chris Janicek (D) in Nebraska, Sara Gideon (D) in Maine, and the cumulative vote total for Democratic Senate candidates in Louisiana by the largest margins with a percentage difference of 27.0%, 22.5%, and 15.8%, respectively.

Biden underperformed Steve Bullock (D) in Montana, Doug Jones (D) in Alabama, and Mike Espy (D) in Mississippi by the largest margins with a percentage difference of 10.7%, 8.0%, and 7.0%, respectively.

The following map shows the percentage difference between Biden and Democratic Senate candidates in all states that held Senate elections. Positive numbers indicate Biden overperformed. Negative numbers indicate Biden underperformed. 

Trump outperformed Allen Water (R) in Rhode Island, Bryant Messer (R) in New Hampshire, and Lauren Witzke (R) in Delaware, by the largest margins with a percentage difference of 19.2%, 11.4%, and 7.5%, respectively.

Trump underperformed Susan Collins (R) in Maine, Mike Rounds (R) in South Dakota, and Ben Sasse (R) in Nebraska, by the largest margins with a percentage difference of 14.6%, 5.7%, and 4.7%, respectively.

The following map shows the percentage difference between Trump and Republican Senate candidates in all states that held Senate elections. Positive numbers indicate Trump overperformed. Negative numbers indicate Trump underperformed.

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Senate Commerce Committee advances Lander nomination for OSTP director

On May 20, 2021, the Senate Committee on Commerce, Science, and Transportation favorably reported by voice vote the nomination of Eric Lander for director of the Office of Science and Technology Policy (OSTP). Lander advances to the Senate for a confirmation vote.

President Joe Biden (D) elevated the office of the OSTP director to his Cabinet, marking the first time this position was made Cabinet-level. 

Lander, a geneticist, molecular biologist, and mathematician, served on the President’s Council of Advisors on Science and Technology in the Obama administration from 2009 to 2017. He is the final announced Biden Cabinet nominee awaiting confirmation. 

One other Cabinet position—director of the Office of Management and Budget—currently remains unfilled. Neera Tanden, Biden’s original nominee for the position, withdrew from consideration on Mar. 2 following bipartisan opposition to her nomination. Biden has not yet named a replacement nominee.

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Biden’s first 100 days in office

April 30 marks the 100th day of President Joe Biden’s (D) presidency. Here is a round-up of where his administration stands so far.

Executive actions

Biden has issued 42 executive orders, 14 presidential memoranda, 49 proclamations, and 10 notices. Biden’s 42 executive orders are the most from a first-term president in his first 100 days in office since President Franklin D. Roosevelt (D) in 1933.

Cabinet

Twenty-one of Biden’s 23 Cabinet members have been confirmed.

The two outstanding Cabinet positions are the directors of the Office of Science and Technology Policy (OSTP) and the Office of Management and Budget (OMB). Eric Lander, Biden’s nominee for OSTP director, had his confirmation hearing before the Senate Committee on Commerce, Science, and Transportation on April 29. If Lander is confirmed, it will be the first time a presidential science advisor is in the president’s Cabinet.

Biden initially nominated Neera Tanden, the president of Center for American Progress, to serve as OMB director. She withdrew from consideration after Sen. Joe Manchin (D-W.Va.) and several key Republicans said they would not support her confirmation. Biden has not yet named a replacement nominee. 

Judicial nominations

Biden nominated 10 individuals to the federal circuit and district courts. Five of the nominees are awaiting committee hearings. The other five are awaiting a committee vote. Biden also nominated a judge to the Superior Court for the District of Columbia.

Legislation

Eleven bills have become law under the 117th Congress. The Biden administration’s signature legislation so far is the American Rescue Plan Act of 2021, which was signed into law on March 11, 2021, to provide economic relief in response to the COVID-19 pandemic. The $1.9 trillion bill passed without support from any Republican members of Congress.

Tie-breaking votes

Vice President Kamala Harris (D) has cast four tie-breaking votes in the U.S. Senate. Two of the votes related to a budget resolution and one to the American Rescue Plan Act. The fourth vote was to discharge the nomination of Colin Kahl for under secretary of defense for policy.

Approval rating

Ballotpedia is tracking the 30-day average of presidential approval rating polls conducted by a select list of polling organizations and outlets.

President Biden’s approval rating for the 13th week of his term was 52.5%, down 1.9 percentage points from the week before. President Trump’s approval rating at the same point in his term was 41.7%, up 0.6 percentage points from the week before.



Absentee/mail-in ballot rejection rates decreased in at least 20 states between the 2016 and 2020 presidential elections

Ballotpedia’s analysis of 2020 election data shows that at least twenty states rejected a lower percentage of absentee/mail-in ballots during the 2020 presidential election than they did in 2016. At least seven states rejected a greater percentage and four states’ rejected the same percentage. Nineteen states have not yet released data making a comparison possible and were not included in this analysis.

The number of absentee/mail-in ballots cast in the 31 states shown above increased 109% from 24.4 million in 2016 to 50.9 million in 2020. The number of rejected ballots also increased from 222,096 in 2016 to 364,242 in 2020, a 64% increase. 

While the number of absentee/mail-in ballots cast and rejected were both higher in 2020 than in 2016, the rejection rate across these 31 states decreased by 0.2 percentage points from 0.9% in 2016 to 0.7% in 2020.

Nationwide, voters cast just under 33.4 million absentee mail/in ballots in 2016 with a rejection rate of 1.0%. In 2020, voters cast an estimated 65.6 million.

The table below shows the 2020 rejection rates Ballotpedia has gathered so far. Vermont is included with its 2020 rejection rate but excluded from other analyses due to the lack of 2016 data.

Data from 2016 was gathered from the U.S. Election Assistance Commission’s (EAC) 2016 Election Administration Voting Survey, a biannual state-by-state analysis of elections’ administration mandated by the 2002 Help America Vote Act. Ballotpedia gathered information on 2020 rejection rates using news sources, publicly available election statistics, and direct outreach to state election officials.

To view more analyses of rejected absentee/mail-in ballots and to learn more about how Ballotpedia gathered this preliminary data, click here: https://ballotpedia.org/Election_results,_2020:_Analysis_of_rejected_ballots



Federal Register weekly update: 1,366 pages added

Image of the south facade of the White House.

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From April 12 through April 16, the Federal Register grew by 1,366 pages for a year-to-date total of 20,248 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 525 documents:

• 441 notices

• six presidential documents

• 49 proposed rules

• 29 final rules

One proposed rule from the Occupational Safety and Health Administration aiming to modify the Hazard Communication Standard (HCS) was deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 12 significant proposed rules and seven significant final rules as of April 16.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017: https://ballotpedia.org/Changes_to_the_Federal_Register 

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Click here to find yearly information about additions to the Federal Register from 1936 to 2018: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2018



Final executive clemency update of Trump presidency

The U.S. Constitution, in Article II, Section 2, grants the president the power of executive clemency. Executive clemency includes the power to pardon, in which the president overturns a federal conviction and restores “an individual to the state of innocence that existed before the conviction.” From 2017-2021, Donald Trump (R) issued 143 pardons and 94 commutations. That averages out to about 36 pardons per year and 24 commutations per year. 

Trump’s 143 total pardons are the most by a one-term president since Jimmy Carter (D), who issued 534 total pardons. His 36 average annual pardons are the most of any president since Bill Clinton (D).

Trump issued the second-most commutations since Lyndon Johnson (D), behind Barack Obama who issues 1,715 commutations. Trump’s average annual commutations issued are also second-most since Johnson.

Since 1902, presidents have issued 14,333 pardons (about 120 per year) and 6,641 commutations (about 56 per year). Democratic presidents issued 8,393 pardons and 4,103 commutations, while Republican presidents issued 5,940 pardons and 2,538 commutations. The president to issue the most pardons in that span was Franklin Roosevelt (2,819) and the president to issue the most commutations in that span was Obama (1,715).



U.S. Senate acquits former President Trump of incitement of insurrection

The U.S. Senate acquitted President Donald Trump (R) of incitement of insurrection on Feb. 13. All 50 Democrats and seven Republicans voted guilty. The other 43 Republicans voted not guilty. The seven Republicans to vote guilty were:

◦ Richard Burr (R-N.C.)

◦ Bill Cassidy (R-La.)

◦ Susan Collins (R-Maine)

◦ Lisa Murkowski (R-Alaska)

◦ Mitt Romney (R-Utah)

◦ Ben Sasse (R-Neb.)

◦ Pat Toomey (R-Pa.)

Trump is the only president to be impeached twice by the House. Trump was previously acquitted of abuse of power by a vote of 52-48 and obstruction of Congress by a vote of 53-47 on Feb. 5, 2020.



Biden signs 28 executive orders in first two weeks in office

President Joe Biden (D) signed 28 executive orders, 11 presidential memoranda, and five proclamations in his first two weeks in office.

That is more executive orders than his three predecessors combined—Presidents Donald Trump (R), Barack Obama (D), and George W. Bush (R)—signed over the same period of time.

Executive orders are directives written by the president to officials within the executive branch requiring them to take or stop some action related to policy or management. They are numbered, published in the Federal Register, and cite the authority by which the president is making the order.

Presidential memoranda also include instructions directed at executive officials, but they are neither numbered nor have the same publication requirements. The Office of Management and Budget is also not required to issue a budgetary impact statement on the subject of the memoranda.

In his 2014 book, By Order of the President: The Use and Abuse of Executive Direct Action, Phillip J. Cooper, a professor of public administration at Portland State University, wrote, “As a practical matter, the memorandum is now being used as the equivalent of an executive order, but without meeting the legal requirements for an executive order.”

Proclamations are a third type of executive directive that typically relate to private individuals or ceremonial events, such as holidays and commemorations.



President Biden has not made any federal judicial appointments through February 1 of his first year in office

As of February 1, 2021, President Joe Biden (D) had not appointed any Article III federal judges. The average number of federal judges appointed by a president through February 1 of their first year in office is zero. 

Through the first year in office, President Ronald Reagan (R) made the most appointments with 41, and President Barack Obama (D) made the fewest with 13.

Through the fourth year in office, President Donald Trump (R) made the most appointments with 234. President Ronald Reagan (R) made the fewest in that time with 166.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

Upon assuming office, President Biden inherited 46 Article III lifetime federal judicial vacancies. As of February 1, there were 57 vacancies. 

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