As Republicans and Democrats battle over President Trump’s most recent Supreme Court nominee, Brett Kavanaugh, Senate Majority Leader Mitch McConnell is quietly and rapidly scheduling votes for lower court nominees without much pushback from Democrats. National interest has fixated on the nominations of Neil Gorsuch and Kavanaugh as potentially the most lasting legacy of the Trump presidency. While these two nominations are critical for decisions related to immigration, Roe v. Wade, and health care, the shift in the appellate and district courts under Trump has the ability to transform the federal judiciary and leave a mark on legislation for generations to come.
The makeup of the lower courts has become even more important in recent months than ever before. The Supreme Court had its slowest term since 2007, with fewer oral arguments and decisions than any session in the past decade. With fewer cases heading to and being decided by the Supreme Court, appellate and district courts are establishing legal precedent for a number of crucial issues.
Trump inherited over 100 judicial vacancies at the beginning of his presidency, more than any other president in the last 30 or so years, with the exception of President Clinton. In 1990, George H.W. Bush signed the Judicial Improvement Act of 1990, which created 85 new federal judicial positions. H.W. Bush was unable to fill many of these positions, ultimately leaving them to be filled by Clinton.
Largely as a result of the Republican blockade of Obama’s judicial nominees in the Senate, there were 88 district court vacancies, 17 circuit court vacancies, and one Supreme Court vacancy when Trump was inaugurated. During Obama’s last two years in office, the Senate confirmed only 22 federal judges, and ultimately there were more than twice as many vacancies at the end of his second term as there were when W. Bush left office. Not only did the Senate block the nominations of appellate and district judges under Obama, but the Senate also refused to consider a replacement for Justice Antonin Scalia’s Supreme Court seat until the 2016 election.
Trump inherited 107 judicial vacancies at the start of his presidency and an additional 71 positions have opened up during his term thus far, meaning that there are currently 176 potential Trump nominees. In addition, a number of judges will be eligible to take senior status during his first term. Article III judges (Supreme Court, US Circuit Courts, US District Courts, and US Court of International Trade) can qualify through the rule of 80, meaning that at age 65, a judge can take senior status after serving for 15 years. The years of service required for senior status decrease as age increases.
105 federal judges have already or will qualify for senior status under Trump’s four years in office, meaning that those judges, if they choose to take senior status, will hear only a fraction of the normal caseload and will open a vacancy for the president to fill. Over the past decade, an average of 38 judges have elected to take senior status. Under Trump’s presidency thus far, however, 20 district and six circuit court judges have already announced they will seek to do so in the next year, signaling a potential increase in retirements in his four-year term. The question remains whether or not there will be a “Trump effect” on judges nominated by Democrats, who may elect to remain on the bench until the end of Trump’s presidency. The future vacancies include seven judges nominated by a Democrat and 19 judges nominated by a Republican.
Scott Jennings, former Special Assistant to the President under George W. Bush, spoke about the lasting impact of Trump’s nominations. “Laws can be changed, regulations can be wiped away, but these federal judicial appointments are lifetime. For 30 years we’ll be talking about the Trump-McConnell courts and their impact.”
The rate at which Trump has pushed through federal judges is unprecedented, particularly considering the number of vacancies he can fill during his term. To date, 26 circuit court judges have been confirmed under Trump — almost double the number of appellate judges confirmed under most recent presidents by this point in their terms. In fact, Trump has had confirmed almost the same number of circuit judges as prior presidents did in a four-year term. Both Obama and Clinton had 30 appellate judges confirmed in their first terms, with HW and W Bush not far ahead with 42 and 35 confirmations, respectively.
Circuit courts, one level below the Supreme Court, often make the final decision in contentious and impactful cases. In the 13 appellate courts, there are currently 13 vacancies available for Trump to fill, with six more judges announcing that they will take senior status in the next year. As they stand now, the circuit courts tilt more heavily to the left, with 84 judges appointed by a Democrat and 75 judges appointed by a Republican. It is important to note that there is not an absolute relationship between nominating party and how a judge votes, although it remains a good indicator of general voting trends. By factoring in the current vacancies and imminent retirements, Trump has the chance to create a 94-84 split in favor of Republican judicial appointees, with 11 more circuit judges eligible for senior status during his term.
Trump has not yet changed the overall balance of any of the individual circuit courts in favor of Republican appointees, although he has largely filled the courts with his judicial nominees. He has succeeded in evenly splitting the 11th Circuit and has nominated judges that, once confirmed, will evenly split the 3rd Circuit as well. In addition, Trump has the opportunity to fill eight of 22 seats on the highly important 9th Circuit and will be able to flip the 2nd Circuit by filling the two vacancies and replacing Judge Reena Raggi, who has announced her retirement.
Reshaping the federal judicial bench will have as significant and lasting an impact as the Supreme Court, which raises the question of why Senate Democrats have allowed a steady flow of Trump nominees to be confirmed without procedural votes or debate. As Democrats fight to secure enough votes to block Kavanaugh’s nomination, Trump has succeeded in confirming 60 federal judges. McConnell has taken advantage of the Senate’s shortened August recess through his aggressive scheduling of confirmation hearings, with little to no resistance from Senate Democrats. The makeup of the federal courts is shifting rapidly, with even more confirmations and vacancies on the horizon.
For more on judicial nominees and the breakdown of the federal courts, download our Federal Judiciary Tracker.