Bench Memos

Law & the Courts

Transforming the Federal Courts of Appeals

It’s a long and difficult project for any president to transform the federal courts of appeals by his judicial appointments. President Trump is off to a great start, but there is a lot of work ahead.

There are 179 authorized “active” appellate judgeships, spread across the twelve geographical courts of appeals and the specialized Federal Circuit. Vacancies in these judgeships arise over a long period of time, for two main reasons. First, the Rule of 80 that governs judicial pensions usually encourages judges to serve at least 15 years in active status and until age 65.* Second, even after satisfying the Rule of 80, many judges will prefer to remain in active status (rather than take senior status or retire altogether from the bench).

In his first two years, President Trump has already appointed 29 appellate judges, and there are at least 7 more lined up for Senate action by year-end. Whether you look at the current total of 29 or the projected two-year total of 36, either is an all-time record for a president during his first two years. (Barack Obama had 16; George W. Bush, 17; Bill Clinton, 19.) But even the projected total of 36 is barely 20% of the 179 active seats.

Further, appointments will often preserve (and extend) rather than alter the ideological composition of an appellate court. Of Trump’s 29 appointments so far, 19 have been to seats previously held by an appointee of a Republican president (an admittedly crude and imperfect proxy for judicial philosophy), and 16 have been to seats on courts that already had a Republican-appointee majority when Trump took office. No court of appeals has yet swung from Democratic-appointee majority to Republican-appointee majority. (The Eleventh Circuit has moved from Democratic-appointee majority to evenly divided.)

One big obstacle to continued progress on federal appellate appointments is that there aren’t many remaining vacancies. In addition to the seven nominations lined up for Senate action by year-end, the White House has announced five other appellate nominations. Beyond that, there are only three existing appellate vacancies that don’t have nominees.

It’s possible that more vacancies will soon arise. By my count, there are some sixty judges who have met, or in a few instances will very soon meet, the Rule of 80 and thus can take senior status. But more than half of these are Democratic appointees, and many of them might well be disinclined to step down during the Trump presidency.**

That leaves some 27 or so pension-eligible Republican appointees as the most promising pool of imminent vacancies. To be clear: It is up to each judge to decide whether and when to take senior status, and I am certainly not encouraging anyone to do so. My limited point here is that the most likely vacancies to arise in the near future cannot be expected to alter the ideological composition of any court.

In short, transforming the federal courts of appeals is a project that will likely require much more than another two years of strong appointments.

* Under the Rule of 80, a judge becomes pension-eligible when the judge’s age plus years of service equal 80, so long as the judge is at least 65 and has served at least 10 years. (Age and years of service are counted in full years, excluding fractions.)

** I don’t mean to imply any objection to the fact that a sitting judge might prefer to be replaced by a president of the same party as the president who appointed the judge, especially if that preference is based on the presumed judicial philosophy of his successor.

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