Appellate Court vacancies may be scarce in coming years, limiting Trump’s impact

By Russell Wheeler

The Trump White House, with Senate Republicans and the Federalist Society, has been appointing courts of appeals judges with bulldozer efficiency. The 29 circuit appointments to date is the highest number of any president at this point in his tenure, facilitated partly by a large number of vacancies. How many more appointments will occur in the next two years depends on how many more vacancies occur, which is uncertain at best.

Despite the 29 circuit appointments, Trump and company have only modestly changed the party-of-appointing-president balance on the court of appeals. Of Trump’s 29 circuit appointments, 19 replaced Republican appointees. Of the 16 current and announced vacancies, 9 were created by Republican appointees.

To be sure, Table 1 shows that when all current vacancies are filled (and were no more to occur), Republican appointees would comprise 54 percent of all active circuit judges, up from 44 percent on Inauguration Day. But only one court of appeals, that of the Third Circuit, will have changed from a Democratic to a Republican-appointee majority, although there will be noticeably more Republican appointees on the Second, Ninth, and Eleventh circuits’ courts. Mainly, though, the Trump circuit appointments have strengthened Republican-appointee majorities on four courts that already had such majorities—those of the Fifth, Sixth, Seventh, and Eighth circuits.

Table 1: Appellate Court Appointees on Trump’s Inauguration Day and After Filling All Current Vacancies

How many more circuit judges can Trump appoint and how much more can he change the face of the appellate courts in the remaining two years of his first term?

Because the Senate will likely confirm almost anyone he nominates, the answer depends on how many vacancies occur, in particular vacancies created by Democratic appointees, an obvious fact noted by many observers.

A judgeship becomes vacant when the judge occupying it leaves active (full-time) status by taking senior status, retiring, resigning, dying, or getting appointed to another court, or getting impeached and convicted. (Congress creates vacancies when it creates additional judgeships to fill, but Congress has not created any circuit judgeships since 1990.)

Senior status is by far the most common form of vacancy creation. Judges become eligible to take this form of statutory semi-retirement, or to retire entirely (keeping their salary in either case), when they turn 65 and their years of service in life-tenured judgeships sum to 80 (the so-called “rule of 80”). (A 67 year-old judge, for example, who had been appointed at age 54, would be eligible: 67+ 13 = 80.) Based on data compiled from the Federal Judicial Center’s Federal Judge Biographical Data Base, of the 334 circuit judges who have created vacancies since 1978, 87 percent of them did so by going senior, retiring, or resigning. Senior status alone accounts for three fourths of all vacancies created.

In that period, on average about seven judges per year took senior status, although the number has ranged from one to 12 per year. On average, retirements occurred less than once a year and resignations even less often.

Trump inherited 17 circuit vacancies on Inauguration Day and since then has benefitted from an unusually high number of additional vacancies, most created by Republican appointees, at least some of whom didn’t want Obama naming their successors. Since Inauguration Day, 21 circuit judges (15 of them Republican appointees) have taken senior status, and four Republican appointees retired from active service. Trump created two more circuit vacancies with his Supreme Court appointments. (A death accounted for the 28^th vacancy since Inauguration Day)

If that accelerated pace of vacancy creation keeps up, Trump will continue to appoint a large number of circuit judges. Although hardly dispositive, history can inform speculation of whether that pace will keep up and whether Trump will be able to replace Democratic appointees. Recent history does not suggest a surge in vacancies.

There are plenty of potential future vacancies. Of the 167 circuit judges in active status in early December, 65 (by my count) are now eligible to leave active status under the rule of 80, and six more will be eligible by July 1, 2020. Of those 71, 40 are Democratic appointees. If all eligible Democratic appointees left active status and Trump filled all those vacancies, there would be a 136 Republican-appointee stronghold in the courts of appeals. To put this figure into perspective, after 12 years of Republican judicial appointments (1981-1993), President Clinton inherited only a 119-Republican-appointee majority.

But being eligible to take senior status or retire and actually doing it are two different things. Indeed, of the 65 now eligible, 23 have been eligible for 20 years or more. It’s unlikely that many of them and many others already eligible will voluntarily depart active status in the next 18 months.

Judges take senior status for a variety of reasons, including health and retaining a judicial salary with a reduced (or even no) workload. Judges retire under the rule of 80 because they tire of the work and can keep their judicial salary and, if so disposed, earn additional money from other employment, including, for example, as well-paid arbitrators or mediators.

On the other hand, judges eschew senior status or retirement because they enjoy full-time judging or don’t want the current president to replace them, or both. Democratic appointees in recent years have been more inclined to leave active status with a Democrat in the White House than have Republican appointees during Republican administrations—and given President Trump’s potential to transform federal courts, liberal justices, especially those appointed by Democratic presidents, may be even less motivated to leave the bench. Table 2 shows the senior-status patterns of the 117 circuit judges currently now or soon to be in senior status.

TABLE 2: Judges Currently or Soon to Be in Senior Status

	Took senior status during
	R administrations	D administrations
R appointees (78)	41	37
D appointees (39)	13	26

And a large spate of Republican appointees leaving active status in the Trump administration’s third and fourth year would not reflect practice in recent Republican presidencies—1983 and 1984, and 1987 and 1988 for Reagan, for example. In the ten such years since 1983, Republican appointees on average took senior status, retired, or resigned 3.6 times per year, compared to 4.1 active-status departures for Republican appointees in all 41 years. Democratic appointees, in those same ten years, took senior status, retired, or resigned on average 1.9 times per year, versus 3.0 such departures per year for all years.

Given these patterns, and given the current environment and president, Democratic appointees seem unlikely to create many vacancies voluntarily over the next 18 months, and if they don’t, the party-of-appointing-president balance that Trump and his allies have achieved in his first two years may not look much different at the end of four years, and look similar to the 100-Republican-appointee majority that Obama inherited in 2009. Republican appointees may leave active status, but not at the pace of the last two years, limiting Trump’s ability to continue staffing the appellate courts with highly conservative appointees.

Source: The Brookings Institute

Brookings Institution