I observed a week ago that so far in 2026 not a single one of the two dozen federal appellate judges who were appointed by Republican presidents and who are eligible to take senior status (or retire) had declared an intention to do so. Since then, three of them have done so: Second Circuit chief judge Debra Livingston, Sixth Circuit chief judge Jeffrey Sutton, and Tenth Circuit judge Timothy Tymkovich. So I was evidently too hasty to conclude that anyone who was planning to go senior or retire in time to ensure that the seat would be filled before November’s elections would probably already have done so.
When I write on the topic of whether judges will take senior status, I often get complaints from judges or their proxies that I am implicitly putting pressure on them to step down. (Sensitive to that concern, I have just deleted a draft statement in the previous paragraph that “I am pleased to report” the decisions by Livingston, Sutton, and Tymkovich.) So let me just emphasize that I fully respect each judge’s authority to make that very personal decision on his own. I have highlighted the confirmation calendar (as has my Ethics and Public Policy Center colleague Mike Fragoso in greater detail) so that any judge who is considering taking senior status can make that decision in a timely manner.
That said, and without regard to any particular seat, I would generally prefer that Donald Trump and any other Republican president have as many appellate seats to fill as possible. I hope and expect that President Trump will continue to make appellate picks of the same high quality that have characterized his picks so far (with, alas, one lamentable exception in my view).
We shall see over the coming days and weeks whether any other federal appellate judges declare an intention to take senior status. (This post of mine presents general factors that might guide the decision one way or the other.)