As May comes to an end, it’s a good time to take a look at Donald Trump’s opportunities to appoint lower-court judges this year.
1. Let’s start with the federal courts of appeals. Trump has made nominations to the five seats that have become available. (All five are so-called “future vacancies” in which the incumbent has declared an intention to take senior status as of a date certain or upon confirmation of his—or, in one case, her—successor.) The Senate Judiciary Committee has reported one of these nominations—Justin Smith to an Eighth Circuit seat in Missouri—to the Senate floor. It has held hearings on two others—Matthew Schwartz to a Second Circuit seat in New York and Benjamin Flowers to a Sixth Circuit seat in Ohio. And it has plenty of time to process the two other nominations that Trump has recently made—Daniel Domenico to a Tenth Circuit seat in Colorado and Daniel Traynor to an Eighth Circuit seat in North Dakota. So the Senate should confirm all five of these before the November elections.
It would be surprising if any other appellate judges declare any time soon that they will take senior status (or retire), as you’d think that anyone so inclined would want to give a long runway for nomination and confirmation of his successor. But we shall see. If anyone else does step down soon, the White House and Senate would have to move quickly to fill the seat.
So look for Trump to have 5 appellate appointments this year, on top of the 6 last year. The total of 11 is far lower than the 30 that he had in the first two years of his first term. The obvious reason for the difference is that there have been far fewer vacancies (both inherited from the previous president and arising during those years).
I predicted at the beginning of the year that “no more than four to six” of the two dozen senior-eligible appointees of Republican presidents would take senior status or retire in 2026. The number now stands at four. (One of the five vacancies arose late last year.)
2. As for the district courts: Trump has appointed 11 district judges this year, and the Senate has confirmed a 12th (who is apparently wrapping up some matters in private practice before receiving her commission).
There are 40 current and future vacancies, many of them longstanding. The White House has made only 12 nominations to those 40 seats. A big part of the reason for the low number is that home-state Democratic senators are exercising their blue-slip privilege to block nominees they don’t like (just as home-state Republican senators did to Biden). But there are 14 vacancies, by my quick count, in states with two Republican senators. It sure would be good for the White House and the Republican senators in those states to work out very soon whom the president should nominate.
If all goes well, Trump should be able to appoint a total of around 38 district judges this year. That’s on top of the 20 whom he appointed last year. The hoped-for total of 58 is slightly higher than Trump’s total of 53 in the first two years of his first term. But that comparison is misleading, as Trump didn’t benefit during the first two years of his first term from the important rule change that Senate majority leader Mitch McConnell led the Senate to adopt in April 2019: reducing the hours of post-cloture debate on district-court nominees and thus making it much easier to find floor time to confirm them. That’s why Trump was able to appoint 121 district judges during the last two years of his first term.
As with appellate seats, Trump has far fewer vacancies in district seats.