1. Will another Supreme Court vacancy arise?
In the immediate aftermath of Donald Trump’s election, I speculated that Justice Alito would announce his retirement in the spring of 2025. Public pushback against that notion leads me to lower the odds of its happening. It seems even more unlikely that a vacancy would arise in any other seat.
2. How many appellate judges will make a decision to take senior status or retire in the first half of 2025?
It appears that Trump will inherit only four appellate vacancies: one in the First Circuit, two in the Third Circuit, and one in the Sixth Circuit. In 2017, he had at the outset 18 appellate vacancies to fill.
There are, by my count, 26 appellate judges who were appointed by Republican presidents and who are eligible to take senior status (or to retire with pension). Any of them currently disposed to do so would probably announce such a decision in the first half of 2025. I will guess that six to ten will do so.
3. How quickly will Trump begin making judicial nominations?
In addition to the four appellate vacancies, Donald Trump will inherit at least 41 district-court vacancies when he takes office on Jan. 20. (I’m relying on today’s data; the numbers on these same linked pages might be higher by Inauguration Day.) A full 39 of those 41 district-court vacancies are in states with two Republican senators, so the robust “blue slip” privilege of home-state senators on district-court seats should not be a serious obstacle to settling quickly on nominees.
That said, President Trump and his White House counsel will have a lot on their plates, so it will be interesting to see when Trump announces his first judicial nominations. In 2017, Trump did not make his first lower-court nominations until May. [Correcting previous sentence:] In 2017, Trump made his first lower-court nomination–of Amul Thapar to the Sixth Circuit–on March 21; he did not make his next lower-court nominations until May. But he and his top lawyers were focused during the transition on selecting the candidate to fill Justice Scalia’s vacancy, and the fight over Neil Gorsuch’s ensuing nomination consumed much of their time and energy. President Biden made his first lower-court nominations in mid-April 2021. Look for Trump to beat that mark.
4. Will Trump continue to make high-quality picks?
There is some noise from some Trump supporters that Trump should look beyond the highly credentialed candidates from the conservative legal movement that he drew on in his first term. I’m unclear what exactly is being proposed. Insofar as the suggestion is that Trump’s picks should be as well suited for the courts as Matt Gaetz was for the position of Attorney General, it strikes me as very bad advice.
The political reality is that Trump and Republican senators have a common interest in his selecting high-quality nominees who will win acclaim from legal conservatives. In the event that a Supreme Court vacancy opens up, I would expect him to look to his own first-term appellate nominees to fill the slot.