People gather at Black Lives Matter Plaza near the White House, and surrounding areas, in Washington, D.C., to celebrate the victory of President-elect Joe Biden, who will become the 46th president of the United States, and Vice President-elect Kamala Harris, on Saturday, November 7, 2020. Photo: Diego M. Radzinschi/ALM
With his victory in the 2020 presidential election, Joe Biden is set to return to the White House—but will face a far more legally fraught executive branch than the one he departed in 2017.
The election was called Saturday for Biden over President Donald Trump, as outlets declared the Democrat the winner by clinching the key state of Pennsylvania. The president is already suing to try and stop the counting of votes and has promised to take the election before the U.S. Supreme Court, but election law experts are widely skeptical that Trump will successfully change any results through litigation.
The law has been a focal point of the Trump administration, as controversial policies were challenged in court and the president sued to fend off congressional probes into his finances.
He and Senate Majority Leader Mitch McConnell, R-Kentucky, have also overseen the appointment of 220 federal judges so far, with more expected to be confirmed during the lame-duck session.
Here's a look at some of the stats from the Trump administration and numbers that will come up for a Biden White House.
>> 3: The number of DOJ officials known to have resigned in protest under Trump. The Department of Justice under Trump faced charges of politicization, particularly when it came to cases involving the president's associates. After Main Justice intervened in the sentencing recommendation for Trump ally Roger Stone, all four line prosecutors quit the case, with one of them—Jonathan Kravis—resigning from DOJ entirely. Another one of those prosecutors, former Mueller team member Aaron Zelinsky, later appeared before the House Judiciary Committee to testify about political pressure in the case. Trump ultimately commuted Stone's sentence.
Phillip Halpern, who worked in the department for 36 years and prosecuted former GOP Rep. Duncan Hunter, recently quit DOJ and wrote a public letter blasting the department's direction under Attorney General William Barr. Other attorneys, like Joel McElvain, quit the Justice Department under former Attorney General Jeff Sessions. McElvain, who worked in the federal programs branch, resigned after the department decided to stop defending the Affordable Care Act in court.
Other prominent DOJ officials have resigned or been forced out under Trump. Former acting Attorney General Sally Yates—recently noted as a major volunteer fundraiser for Biden—was fired after declining to defend the first iteration of Trump's travel ban. Preet Bharara, the U.S. attorney for the Southern District of New York, was fired after refusing to resign early on in Trump's term; his successor, Geoffrey Berman, testified that he was forced out of his position by Barr.
>> 5: The number of Trump-related Supreme Court cases heard so far. Over the past three terms, the justices have ruled on a number of controversial Trump administration policies and dived into the issue of access to the president's tax returns.
In 2018, the court ruled to uphold the third iteration of a travel ban Trump issued on those from a number of majority-Muslim countries. In a victory for the president, the justices found 5-4 that Trump had national security interests in implementing such a restriction.
But other rulings have not been in the president's favor. In a 5-4 ruling in 2019, the court blocked officials from including a citizenship question on the 2020 census, finding the reasoning behind the query to be "contrived." And in July, the justices issued another 5-4 decision against officials' attempt to unwind the Deferred Action for Childhood Arrivals (DACA) program.
The court this past summer also declined to fully shield Trump's tax returns from investigators. The justices said the returns could be provided to a New York state grand jury, but crafted a new test for when congressional investigators could get the president's personal papers and remanded those cases to lower courts. The New York case has since returned before the justices.
The court will hear more Trump-related cases this term. Arguments on Obamacare, in which the Trump DOJ says the entire law should be struck down, will be held Nov. 10. And the justices will hear later this term a case in House Democrats' bid to access grand jury materials redacted from the Mueller report.
But that number of cases isn't representative of the Trump policies the court has weighed in on. The justices have repeatedly granted stays to the administration that allows them to continue their actions—like construction of the wall on the southern border, or ending the 2020 census early—while the litigation moves forward. These "shadow docket" actions have gotten more attention in recent months, particularly as liberal members of the court like Justice Sonia Sotomayor speak out against them.
>> 22: The number of district courts with no Trump judges. While Trump and McConnell have seated more than 160 trial judges, some districts are without any judicial nominees at all.
A handful also have judicial emergencies. The U.S. District Courts for New Jersey, the Eastern District of California and the Eastern and Western Districts of Washington are among those that have received no new judges under the Trump administration. There are currently five vacancies on the Western Washington court, while New Jersey has six open seats. There are two nominees pending to fill the vacancies in the Eastern District of California.
Judges on several of those courts have described a crisis due to the lack of jurists, with senior judges and remaining judges struggling to keep up with their dockets.
Other courts, like the Western District of Arkansas, have had no vacancies under Trump. Trial courts with no Trump confirmed judges include the Western District of Arkansas; the Northern District of California; the Southern District of Iowa; the Central District of Illinois; the Middle and Southern Districts of Louisiana; the Western District of Missouri; the Northern and Southern Districts of Mississippi; the Districts of Montana, New Hampshire, Nevada, Vermont and Massachusetts; the Northern District of New York; the District of South Dakota; the Western District of Wisconsin and the District of Wyoming.
Some federal courts did not receive any Trump judges until recently. The Senate in September confirmed the first federal judges for any California court since 2015, after some nominees spent months after their nominations and hearings waiting to receive a floor vote. Those confirmations eased a judicial emergency in the Central District of California, but several vacancies still remain for that and other California courts.
>> 30: The estimated number for Democratic-appointed appeals judges eligible for senior status at the start of Biden's term. Trump and McConnell have overseen the confirmation of 53 judges to the federal appeals courts, leading to 1 in every 3 circuit judges being a Trump nominee. The administration inherited a slate of vacancies after McConnell blocked dozens of judicial nominations toward the end of President Barack Obama's second term, which allowed Trump to fill those seats.
There are two recent vacancies on the appeals courts: One on the U.S. Court of Appeals for the Seventh Circuit, to fill Justice Amy Coney Barrett's seat, and another on the U.S. Court of Appeals for the First Circuit after the death of Judge Juan Torruella. Judge Joel Flaum, also on the Seventh Circuit, is set to take senior status on Nov. 30. It's a near certainty that Trump would act to fill those seats before leaving office.
Even with a limited number of inherited vacancies, Biden would still have a chance to appoint judges to the appeals court. Russell Wheeler, a visiting fellow with the Brookings Institution who studies judicial confirmations, recently estimated that about 30 Democratic nominees on the appeals court are eligible for senior status, and inherit 25 to 40 district court vacancies. If those judges step down, the Biden White House would be able to fill those seats—but because they are Democratic appointees, Biden will have far less of a chance to reshape the appeals courts.
At the same time, it's unclear which party will have control of the Senate come January—meaning Biden may have to pick judges that McConnell is willing to put up for a vote.


