In order to understand what today’s Senate elections mean for judicial confirmations in the last two years of Donald Trump’s presidency, it’s useful to look at the list of appellate judges in active service who were appointed by Republican presidents and who are, or who will soon become, eligible to take senior status.
There are 25 such judges. Whether any of them will take senior status over the next two years is anybody’s guess. Judges decide to go senior for their own reasons—I highlight some of the factors and explain the governing Rule of 80 here—and I have no intention of nudging any of them to do so. (If I did have such an intention, an election day on which the Senate is widely expected to flip to Democratic control would be a strange time to express it.)
As you will see from the list below, 7 of the 25 will become senior-eligible between now and the end of 2028. So they will face a discrete decision point. The other 18 have been senior-eligible since before Trump’s second term began—many of them long before. Indeed, 12 of them were senior-eligible for all of Trump’s first term. This of course is not a young cohort: 15 of them will be 75 or older next year.
If Republicans retain control of the Senate, it should be rather easy to fill the seat of any judge who goes senior. (That includes the seat of Fifth Circuit judge Catharina Haynes. Although she does not become senior-eligible until November 2028, she could declare her intention well in advance, and Trump could nominate and the Senate could confirm her successor in the interim.)
Conversely, if Republicans lose control of the Senate, it is highly unlikely that Trump will be able to fill any of the seats.
I do not include on my list the four judges who have already declared their intention to take senior status and whose successors should—if all goes well—be confirmed by year-end. (For the sake of completeness, I do include Roger Gregory, the very liberal Fourth Circuit judge who was initially recess-appointed by Bill Clinton and who will surely not give Trump an opportunity to replace him.)