In a Senate vote late this afternoon, Seventh Circuit nominee Rebecca Taibleson should become President Trump’s fourth appellate pick to be confirmed by the Senate. Remarkably, three of the four—Whitney Hermandorfer (Sixth Circuit), Jennifer Mascott (Third Circuit), and Taibleson—clerked for then-D.C. Circuit judge Brett Kavanaugh before clerking for conservative justices on the Supreme Court (Hermandorfer for Justices Alito and Barrett, Mascott for Justice Thomas, and Taibleson for Justice Scalia). It’s quite a testament to Kavanaugh’s success in launching the careers of outstanding female lawyers. And unless I’ve missed it, Trump hasn’t gotten much credit from the folks who claim to want more women on the bench.
Trump’s other two appellate picks—Joshua Dunlap (First Circuit) and Eric Tung (Ninth Circuit)—have been on the Senate floor since September 11. They should be confirmed soon.
On Friday, Eighth Circuit judge Duane Benton announced that he would take senior status (upon the confirmation of his successor, I believe). Judge Benton is the first appellate judge since March to create a vacancy for Trump to fill. Look for that vacancy to be filled early in 2026.
Trump will very likely end 2025 with a total of 6 appellate nominees confirmed by the Senate. By contrast, he had 12 in the first year of his first presidential term.
The biggest reason for the difference is that Trump had a lot more vacancies to fill in 2017. Because Republicans controlled the Senate during the last two years of Barack Obama’s presidency, Obama left lots of seats unfilled. Because Democrats controlled the Senate during the last two years of Joe Biden’s presidency, Biden left hardly any seats unfilled.
The numbers from the United States Courts website tell the story: In January 2017, there were 17 vacancies (plus one “future” vacancy) on the federal courts of appeals. In January 2025, there were 3 (plus one future).
In the second year of his first presidential term, Trump had an additional 18 appellate nominees confirmed by the Senate, making a total of 30 for his first two years. At this point, it is unclear how many vacancies, in addition to Benton’s, Trump will be able to fill in 2026. There are some 23 appellate judges who were appointed by Republican presidents and who are eligible to take senior status or to retire. But no one knows how many of them will choose to do so.
The Senate map in the 2026 elections makes it likely that Republicans will retain control of the Senate for Trump’s last two years. But it would be a folly to count on that. If Democrats win control, Trump will have a very difficult time filling any appellate seats in his last two years.