The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Why Are There So Few Judicial Vacancies for President Trump to Fill?
There are fewer early-term vacancies than one might have expected.
The first Trump Administration substantially reshaped the federal courts. Will the second Trump Administration be equally effective or influential on the composition of the judiciary? The jury is still out. Even setting aside the Supreme Court--where President Trump made three appointments in a single term--it is looking like there will be significantly fewer opportunities to influence the balance and composition of the federal courts.
At present, there are more Republican than Democratic nominees on the federal circuit courts of appeal, but there are Republican majorities on only six of thirteen circuits. There are also more Democratic than Republican appointees on district courts, as one would expect given that a Democratic president was making judicial appointments the past four years.
How much influence President Trump will have on the composition of the federal courts will largely depend on the extent to which eligible judges elect to take senior status or retire, thereby creating vacancies for Trump to fill. As I noted in May and July, it appears that some number of judges are more reluctant to take this step than one might have expected.
Russell Wheeler at the Brookings Institution notes that, to date, there are fewer vacancies for Trump to fill than one would usually expect during the early part of a Presidential term. Specifically, Wheeler suggests there have been fewer strategic retirements by Republican appointed judges than one might expect.
Note, however, that any reluctance by Republican appointees to step down or take senior status does not directly affect the extent to which President Trump will influence the balance of the federal courts during his second term. Shifting the balance of the courts generally, and specific circuit courts in particular, will depend upon whether Trump has the opportunity to fill seats currently held by Democratic appointees. (The creation of new court seats, as has been recommended by the Judicial Conference, could also have an impact, particularly on district courts, but this appears unlikely before 2028.)
Wheeler echoes the speculation that some Republican judges may be reluctant to create vacancies because they do not want to be replaced by a Trump appointee, whether because of their concerns about Trump himself, his attitude about the courts, or the sort of nomination he would make. Comments by administration officials and proxies suggesting that Trump is likely to emphasize different criteria in his second term than he did during his first may feed into this, though (with the exception of the Emil Bove nomination, which provoked substantial controversy), Trump's judicial picks so far this term have been quite strong and quite consistent with the pattern we saw during the first term.
There is another factor that may affect Trump's ability to influence the composition of the courts that is rarely discussed: the length of judicial service is increasing. Insofar as longevity is increasing, it should not surprise us that more judges are deciding to serve longer than they might have in the past. In addition, insofar as recent administrations, and the Trump Administration in particular, have increasingly tapped younger judicial nominees, we would expect them to serve longer as well.
In my view, strategic behavior by judges may help explain the relative lack of judicial vacancies for Trump to fill--and I have heard this concern expressed by some judges--but other factors likely play a role as well.
