Bench Memos

Law & the Courts

Flipping Judicial Seats

Pardon me for stating the obvious, but every federal appellate appointment can be expected to alter the long-term ideological make-up of an appellate court. When President Trump replaces a judicial conservative with another judicial conservative, he is extending the period of time in which the seat will be held by a judicial conservative. Plus, when (as is common) the “retiring” judge actually stays on the court in senior status and continues to hear cases, the overall pool of judges on the court becomes more conservative.

That said, the greatest effect on the ideological composition of a court comes, of course, when a president replaces a judge of one judicial philosophy with a judge of a different judicial philosophy. For purposes of this post, I’ll use the party of the appointing president as an admittedly imperfect proxy for judicial philosophy.

Let’s look at where things stand with President Trump’s picks and existing vacancies:

1. Of President Trump’s 21 confirmed appellate nominees, eight are filling a vacancy left by a Democratic appointee: Stephanos Bibas (CA3), James Ho (CA5), Amul Thapar (CA6), Michael Brennan (CA7), Amy St. Eve (CA7), David Stras (CA8), Ralph Erickson (CA10), Lisa Branch (CA11).

2. Of President Trump’s ten pending appellate nominations, three are for vacancies of Democratic appointees: Paul Matey (CA3), Marvin Quattlebaum (CA4), and Britt Grant (CA11).

3. With Fourth Circuit judge Allyson Duncan’s decision this week to take senior status, there are now twelve vacancies that await nominees. Of these twelve vacancies, five will replace Democratic appointees: four in the Ninth Circuit (three in California, one in Arizona), and one in the Second Circuit. Let’s hope that nominations for these five seats are made very soon.

For what it’s worth, by my count (making some updates and adjustments to this spreadsheet that Josh Blackman posted some months ago) there are thirty more Democratic appointees to the courts of appeals who are retirement-eligible. Whether and when they will choose to retire is, of course, anyone’s guess.

While I’m at it, let me mention that I was surprised that a couple of people (not judges) thought that my listing the other day of retirement-eligible Republican appointees was some sort of coy suggestion on my part that these appointees should retire. Set aside that I expressly “emphasize[d] that by listing these names I [did] not mean to suggest that any particular individual should retire.”

I’ll point out, first, that I identified the entire set of retirement-eligible Republican appointees. Does anyone really imagine that I want all of those judges to retire or that I am indifferent among them? (There are many who I hope will serve for many, many more years.)

I’ll point out, second, that the November elections, in which Republicans might lose control of the Senate, are barely five months away and that, given how long the nomination and confirmation processes typically take, it’s too late to think that a judge who hasn’t already given some notice of an intention to retire could be replaced by a successor this year. Does anyone really think that I’m eager to have Republican appointees leave their seats vacant?

I’ll point out, third, that I’m well aware that judges make their retirement decisions for their own weighty reasons, and it would have been silly for me to fancy that a blog post of mine would have any impact on their thinking.

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