Now that I’ve taken a snapshot of each federal court of appeals, I’ll offer some observations on the bigger picture.
Total appellate appointees. Every federal appellate appointment is important, and I am hopeful that Donald Trump will repeat his record of picking excellent nominees. But don’t expect him to get anywhere near his first-term total of 54 appellate appointees. Look instead for a total in the range of 20 to 30.
Flipping seats. Of the 54 federal appellate judges that Donald Trump appointed in his first term, 19 were to seats vacated by appointees of Democratic presidents.
Joe Biden appointed 45 federal appellate judges, but only 6 of his appointees filled seats that had been held by Republican appointees.
So by the measure of flipping seats, Trump was three times as successful as Biden.*
Trump seems unlikely to have as many flip opportunities in his second term. He will inherit four (actual or declared) vacancies in seats held by Democratic appointees. (I assume here that the two judges who have declared that they will step down on confirmation of their successors won’t try to rescind their declarations.) Back in 2017, he inherited ten.
There are only 13 Democratic-appointed judges who are eligible to take senior status. I’ll guess that three or four of these might vacate their seats.
There are another dozen or so Democratic-appointed judges who will become senior-eligible at some point over the next four years, but I wouldn’t count on any vacancies from this cohort.
So I’ll guess that Trump will flip no more than 7 or 8 appellate seats in his second term.
Flipping courts. In his first term, Trump flipped three courts of appeals—the Second Circuit, the Third Circuit, and the Eleventh Circuit—from a majority of Democratic appointees to a majority of Republican appointees, and he dramatically narrowed the margin on the Ninth Circuit (from a 19-to-9 Democratic majority to 16-to-13).
Biden flipped the Second Circuit back to a single-seat majority of Democratic appointees, and he cut the Republican majority on the Seventh Circuit from 8-2 to 6-5.
Six of the 13 courts of appeals—the Third, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits—have a majority of Republican appointees. Trump is unlikely to flip any others. Amazingly enough, his best prospect for a flip might well be the Ninth Circuit.
Replacing appointees of Republican presidents. There are around two dozen Republican appointees who are senior-eligible—26 by my count, excluding the very liberal Roger Gregory (first recess-appointed by Clinton, then appointed to a lifetime position by GW Bush). There are an additional seven who will become senior-eligible during Trump’s term.
We shall see how many vacancies result from this group. I’ll guess 15 to 20.
* Trump and Biden each had one flip that didn’t have significant ideological consequences. Trump filled the seat of Ninth Circuit judge Richard Tallman, a moderate Republican appointed by Bill Clinton. Biden filled the seat of Sixth Circuit judge Helene White, a Democrat appointed by George W. Bush as part of a broader deal. If you subtract them out, the resulting 18-to-5 ratio is somewhat stronger in Trump’s favor.