Bench Memos

Trump’s Opportunity to Shape the Federal Courts

When Donald Trump was sworn in as the nation’s 45th President, there were 114 federal court vacancies, with more on the way. 17 of these vacancies are on federal appellate courts, where there will be two additional vacancies by the end of February.  

Over at the Volokh Conspiracy, I review the number of vacancies and current balance on each of the U.S. Circuit Courts of Appeals. With one exception — the U.S. Court of Appeals for the Third Circuit — Trump’s ability to alter the balance of the federal appellate courts is limited, at least for now. Yet, according to Ballotpedia, a majority of currently sitting federal judges are or will become eligible to take senior status at some point in the next four years.

If the Trump Administration wants to encourage more judges to take this option, thereby creating more vacancies for President Trump to fill, it will take care to ensure that Trump’s initial nominees are particularly well-qualified and respected. Sitting judges are more likely take senior status if they are more confident in the caliber of their likely replacements.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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