I recently provided the answers to my four big questions on judicial appointments in 2025. Let’s now look at the four big questions for 2026. (Yes, there are some repeats.)
1. Will Republicans retain control of the Senate after the 2026 elections?
This question matters most for what will happen on judicial appointments in 2027 and 2028. If Donald Trump is going to have four years of judicial appointments in his second presidential term, Republicans need to retain control of the Senate.
Republicans enjoy a 53-seat majority in the Senate. They have 22 seats up for election in November, while Democrats have only 13. They can lose up to three seats and still retain control.
Overall, the Senate map is encouraging for Republicans. The Cook Political Report rates 17 of the Republican seats as solid, two as likely Republican, one (Ohio/Husted) as lean Republican, and only two (Maine/Collins and North Carolina/open) as toss-ups. It likewise rates one of the Democratic seats (New Hampshire/open) as lean Democrat and two others (GA/Ossoff and Michigan/open) as toss-ups.
But the political environment may well be volatile, and it would be a folly to put much reliance on ratings ten months before the elections.
If Republicans retain control, the odds that Trump will have at least one Supreme Court appointment during his second term rise substantially. If Democrats win control, look for judicial appointments to grind to a halt.
2. Will another Supreme Court vacancy arise in 2026?
Speculation about possible retirements tends to focus on Clarence Thomas, who turns 78 in 2026, and Samuel Alito, who turns 76. I doubt very much that either will retire this year. There are too many important and interesting cases, and each justice has ample reason to doubt that whoever was picked to replace him would be as effective.
Over the course of the next five months, Justice Thomas would pass John Marshall (on March 27), John Paul Stevens (on May 5), and Stephen Field (on May 9) to become the second longest-serving justice in Supreme Court history. He’d need another two years—until May 21, 2028—to take the top spot away from William Douglas.
Thomas appears committed to stay on the bench for the rest of his life, even if he thereby risks repeating Ruth Bader Ginsburg’s error of being replaced by someone who would erase much of his legacy.
It seems very unlikely that any other justice would retire. There is of course always the possibility of an involuntary vacancy, though the odds of that are probably under 10%.
3. How many appellate judges will make a decision to take senior status or retire in the first half of 2025?
There are 24 conservative to moderate appellate appointees of Republican presidents who are eligible to take senior status or retire. Eight of these judges will be 80 or older in 2026.
Judges who intend to leave active status should announce their decision soon so that they can be replaced well in advance of the 2026 elections.
I will guess that no more than four to six of these 24 judges will take senior status or retire in 2026.
Trump had 30 appellate appointments in the first two years of his first term. Because so few vacancies existed, he had only six appellate appointments in 2025, and he is unlikely to total 15 for the first two years of his second term.
4. How many district-court vacancies will Donald Trump fill in 2026?
There are 47 district-court vacancies (current plus future declared) going into 2026. President Trump has made nominations for only 8 of those seats. Of the 39 vacancies without nominees, 21 have been vacant since Trump took office in January, and 4 more since at least May.
As I have pointed out, Democratic obstruction is not responsible for most of this failure: 17 of the 25 seats long awaiting nominees are in states that have two Republican senators, including 7 in Texas alone.
A minimal measure of success for district-court seats in 2026 is filling all the vacancies in red states—i.e., states with two Republican senators—that exist now (there are 33) and that arise by the end of June.
It will be much more difficult for Trump to fill district-court seats in states with Democratic senators. All 20 of his district-court appointments in 2025 were in red states.