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.)