Bench Memos

Law & the Courts

How Future Vacancies Could Transform the Federal Courts of Appeals

Last month, I did a quick breakdown of the federal courts of appeals by party of appointing president (which is at best a very crude metric of judicial philosophy). Here I am going to take a harder look at how the composition of each court might change by the end of 2020.

In particular, I am going to identify which sitting judges are, or will soon be (i.e., by July 2020), eligible to take senior status or retire. I emphasize that in doing so I express no opinion whether any particular judge should take senior status or retire. I also offer no prediction on who might. As a general rule, judges appointed by Democratic presidents are much less likely than judges appointed by Republican presidents to step down.

I set forth in “Potential new” what the new composition of the court would be if all senior-eligible judges stepped down and were replaced by appointees of President Trump. That, of course, is a farfetched scenario. But it nonetheless might shed some light on the future, especially if President Trump wins a second term.

To avoid repeating the phrases “appointee of Republican president” and “appointee of Democratic president,” I will use the shorthands R and D. In doing so, I do not mean to suggest that judges are political partisans. I will also use V for vacancy.

Here we go, circuit by circuit:

D.C. Circuit

Now: 4 R, 7 D

Senior-eligible now: 1 R (Henderson) and 3 D (Garland, Rogers, and Tatel)

Senior-eligible soon: 1 R (Griffith)

Potential new: 7 R, 4 D

First Circuit

Now: 2 R, 4 D

Senior-eligible now: 1 R (Torruella) and 1 D (Lynch)

Senior-eligible soon: none

Potential new: 3 R, 3 D

Second Circuit

Now: 4 R, 7 D, 2 V

Nominations of Bianco and Park are pending on Senate floor

1 R (Jacobs) will take senior status on May 31

Senior-eligible now: 1 R (Hall) and 4 D (Cabranes, Chin, Katzmann, Pooler)

Senior-eligible soon: 1 D (Droney)

Potential new: 11 R, 2 D

Third Circuit

Now: 7 R, 6 D, 1 V

Senior-eligible now: 1 R (Smith) and 2 D (Ambro and McKee)

Senior-eligible soon: none

Potential new: 10 R, 4 D

Fourth Circuit

Now: 6 R, 9 D

I’m counting Gregory (recess-appointed by Clinton, then appointed by Bush) as D

Senior-eligible now: 3  2 R (Agee, Niemeyer, Wilkinson) and 4 D (Floyd, Gregory, King, Motz)

Update (5/22): I now see that I messed up on Judge Agee; he becomes senior-eligible in November 2020.

Senior-eligible soon: none 1 D (Keenan)

Update (5/22): I missed that Judge Keenan becomes senior-eligible in March 2020.

Potential new: 10 R, 5 D 11 R, 4 D

Fifth Circuit

Now: 11 R, 5 D, 1 V

Senior-eligible now: 3 R (Jones, Smith, Southwick) and 2 D (Dennis, Stewart)

Senior-eligible soon: 1 R (Owen)

Potential new: 13 R, 3 D

Sixth Circuit

Now: 10 R, 6 D

I’m counting White (first nominated by Clinton but appointed by Bush) as D

Senior-eligible now: 1 R (Gibbons) and 4 D (Clay, Cole, Donald, Moore)

Senior-eligible soon: 1 R (Griffin—next week)

Potential new: 14 R, 2 D

Seventh Circuit

Now: 9 R, 2 D

Senior-eligible now: 4 R (Easterbrook, Flaum, Kanne, Rovner) and 1 D (Wood)

Senior-eligible soon: none

Potential new: 10 R, 1 D

Eighth Circuit

Now: 10 R, 1 D

Senior-eligible now: 2 R (Benton, Loken)

Senior-eligible soon: 1 R (Shepherd)

Potential new: 10 R, 1 D

Ninth Circuit

Now: 9 R, 16 D, 4 V

Nominations of Collins and Lee are pending on Senate floor; Bress in committee

Senior-eligible now: 4 R (Bea, Bybee, Callahan, M. Smith) and 8 D (Berzon, Fletcher, Gould, Graber, McKeown, Paez, Rawlinson, Thomas)

Senior-eligible soon: 1 R (Ikuta) and 1 D (Wardlaw)

Potential new: 22 R, 7 D

Tenth Circuit

Now: 5 R, 7 D

Senior-eligible now: 1 R (Hartz) and 2 D (Briscoe, Lucero)

Senior-eligible soon: none

Potential new: 7 R, 5 D

Eleventh Circuit

Now: 6 R, 6 D

Senior-eligible now: 2 R (Carnes, Tjoflat) and 1 D (Marcus)

Senior-eligible soon: 1 D (Wilson)

Potential new: 8 R, 4 D

Federal Circuit

Now: 4 R, 8 D

Senior-eligible now: 3 R (Lourie, Newman, Prost) and 2 D (Dyk, Wallach)

Senior-eligible soon: none

Potential new: 6 R, 6 D

(I may well have made some errors in this compilation. Please notify me if you discover any, and I will update the post.)

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