Vacancies on Article III courts have averaged 37 this year and 42 this Congress, the lowest since the 97th Congress in 1981–82. Since the judiciary was 24 percent smaller back then, today’s vacancy rate is by far the lowest in decades.
The primary cause is the low number of Article III judges who are taking senior status, which accounts for about three-quarters of new vacancies. Only 23 judges have taken senior status since Trump took office in January 2025, half the average during this same period for his seven predecessors. By comparison, 77 judges took senior status during the first 17 months of the Biden administration. An average of 6.5 percent of the judiciary opened up this way for Presidents Ronald Reagan through Joe Biden by this point in their terms, compared with just 3 percent so far in Trump’s second term. More than 20 percent of Trump’s nominees, including all of his picks for the U.S. Courts of Appeals, have been to future vacancies, where a judge has indicated that he or she will resign or take senior status at a future date.
Then there’s the way the Senate handles nominations once they are made. It is hard to overstate how radically the confirmation process has changed in just the past decade. Between 1789 and 2016, the Senate confirmed 94 percent of judicial nominees without opposition and 85 percent without a recorded vote. These measures plunged to 22 percent and 15 percent in President Trump’s first term, 3 percent each under President Biden, and both a flat zero since Trump took office a second time.
Another change is that the Senate is forced to take a separate vote to invoke cloture, or end debate, on a nomination before it can vote on confirmation. The Senate cloture rule has applied to nominations since 1949 and today requires 60 votes. Between 1949 and 2016, the Senate took a cloture vote on 4 percent of the judicial nominees it confirmed. This jumped to 80 percent during Trump’s first term, 93 percent under Biden, and 100 percent since January 2025.
But that does not tell the whole cloture story. In November 2013, Senate Democrats used a parliamentary gimmick, dubbed the “nuclear option,” to reinterpret the cloture rule’s 60-vote threshold to mean a simple majority for nominations. The rule still says “three-fifths of Senators duly chosen and sworn,” but it would take 67 votes to change those words. Instead, the Senate voted 52–48 in November 2013 to pretend that 60 equals 51. The cloture process still exists, which means senators can still force the Senate to go through the motions of taking cloture votes. But any nominee with enough votes for confirmation has enough votes for cloture.
Even though the cloture rule can no longer be used to prevent confirmation, 90 percent of cloture votes on confirmed judicial nominees in American history have occurred since November 2013. Ninety percent have been entirely for show, their only purpose being to slow the process (though only a little) and to give the appearance of standing up to a president of the other party (though only briefly).
The latest Judicial Appointments Memo shows that the Senate Judiciary Committee has held a hearing on 88 percent of Trump’s second-term judicial nominees, the highest since Reagan’s first term. And as of July 1, there is a single vacancy on the U.S. Courts of Appeals, with Second Circuit Judge Debra Livingston taking senior status.
Finally, the Administrative Office of the Courts lists eleven future vacancies, three on the U.S. Courts of Appeals (Fifth, Sixth, and Tenth Circuits) and eight on the U.S. District Courts. Nine of those eleven incumbents were appointed by Republican presidents.
The bottom line is that the Trump administration, the Senate, and the Senate Judiciary Committee are taking prompt action to fill what judicial vacancies, current or future, come up despite Democrats’ unprecedented obstruction tactics.