Bench Memos

Law & the Courts

President Biden’s Starting Position on Federal Appellate Courts

Here’s my stab at summarizing the composition of each of the federal appellate courts on Inauguration Day by the party of the president who appointed each judge. (V stands for vacancy.) For a quick look at Donald Trump’s impact on the courts, I include in parentheses the composition on Inauguration Day in 2017. I also identify the Democratic-appointed judges who are, or who soon will be, eligible to take senior status (or to retire with full pension), as they are the most likely source of imminent vacancies.

Please note that party of appointing president is at best a rough proxy for judicial ideology.

D.C. Circuit: 7 D – 4 R (same in 2017)

Garland (to retire on confirmation as AG), Rogers, Tatel

First Circuit: 4 D – 1 R – 1 V (4 D – 2 R in 2017)

Lynch, Thompson (March 2021)

Second Circuit: 6 D – 7 R (7 D – 4 R – 2 V in 2017)

Katzmann (retired yesterday), Cabranes, Carney (September 2021), Chin, Pooler

Third Circuit: 6 D – 8 R (7 D – 5 R – 2 V in 2017)

Ambro, Greenaway (November 2022), McKee

Fourth Circuit: 9 D – 6 R (10 D – 5 R in 2017)

Floyd, Keenan, King, Motz, Wynn (August 2022)

I’m counting the very liberal Gregory, who was recess-appointed by Clinton and then appointed to lifetime spot by GWB, as an R appointee. He is also senior-eligible.

Fifth Circuit: 5 D – 12 R (5 D – 9 R – 3 V in 2017)

Dennis, Graves (November 2022), Stewart

Sixth Circuit: 5 D – 11 R (5 D – 10 R – 1 V in 2017)

Clay, Cole, Donald, Moore, Stranch (September 2022)

The liberal White, appointed by GWB as part of a deal, becomes senior-eligible in December 2021.

Seventh Circuit: 2 D – 8 R – 1 V (3 D – 6 R – 2 V in 2017)

Wood, Hamilton (July 2022)

The liberal Rovner, appointed by GHWB, is 82 and also a likely candidate to take senior status or retire.

Eighth Circuit: 1 D – 10 R (1 D – 8 R – 2 V in 2017)

None

Ninth Circuit: 16 D – 13 R (18 D – 7 R – 4 V in 2017)

Berzon, Fletcher, Gould, Graber, Hurwitz (June 2022), McKeown, Paez, Rawlinson, Thomas, Wardlaw

Tenth Circuit: 7 D – 5 R (same in 2017)

Briscoe, Lucero, Matheson (2022), McHugh (2022)

Eleventh Circuit: 5 D – 7 R (8 D – 3 R – 1 V in 2017)

Martin, Wilson

Federal Circuit: 8 D – 4 R (same in 2017)

Dyk, O’Malley (November 2021), Reyna (April 2022), Wallach

(Please call any errors to my attention.)

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