Bench Memos

Law & the Courts

Judicial Appointments in 2020: Four Big Questions

1. Will another Supreme Court vacancy arise?

If a vacancy arises on the liberal side of the Court, President Trump will have the opportunity to create a six-justice conservative majority. If a vacancy arises from the conservative ranks, he will be able to perpetuate the five-justice conservative majority for the foreseeable future.

Either way, if Trump picks a strong nominee, look for that nominee to be confirmed expeditiously by the Senate. The 53-47 Republican margin ought to make confirmation relatively smooth, notwithstanding the ruckus the Left will raise.

2. Will many new vacancies open up on the federal appellate courts?

As of today, there are only two vacancies (current or declared future) on the federal appellate courts. The nominee to one of those vacancies (Andrew Brasher to an Eleventh Circuit seat in Alabama) will probably be confirmed this month.

As identified in this post, there are 29 sitting appellate appointees of Republican presidents who are, or who will soon be, eligible to take senior status or to retire, and there are an additional 38 such appointees of Democratic presidents. We’ll see how many, if any, decisions to take senior status are announced over the next week or two. Don’t count on many additional vacancies opening up over the course of the year.

The Senate confirmed 20 of Trump’s appellate nominees in 2019. We’ll see if it is able to reach double figures in 2020. I wouldn’t bet on its doing so.

3. Will the Senate trial of President Trump’s impeachment interfere with judicial confirmations?

I doubt that the impact will be much. The trial will take place in the afternoon hours, probably over the course of a few weeks. That leaves plenty of time to vote on judges.

4. Will Donald Trump win re-election?

This is the most momentous question for judicial confirmations (as well as for much else). If Trump is re-elected, he might well end up appointing four or five Supreme Court justices over his eight years, and he can continue his transformation of the federal appellate courts. If he loses re-election, the courts could be very much up for grabs.

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