With Donald Trump back in the White House, those who follow judicial appointments will turn a keen eye to the federal judges who are eligible to retire and did not do so under Joe Biden. First among these, of course, are the older Supreme Court justices, but there are also 68 circuit judges and over 140 district judges who are either eligible to retire or will be by the end of the second Trump administration. How, then, should these judges approach this opportunity to lock in their legacies and that of a conservative judiciary?

The judicial situation today generally looks different from that of eight years ago, when Mitch McConnell ground judicial nominations to a halt for the 114th Congress and gifted President Trump a Supreme Court vacancy, 17 appellate vacancies, and 86 district vacancies. Going into the second Trump administration, by contrast, there are only four (this may go down to three) circuit and 41 district vacancies. Trump’s judicial agenda will depend largely on what sitting judges choose to do with their retirements.

The stakes are high. In 2019, President Trump was able to replace the two most left-wing judges on the infamous Ninth Circuit, Stephen Reinhardt and Harry Pregerson, with conservative stalwarts Kenneth Lee and Daniel Collins because both Reinhardt and Pregerson had failed to retire during the first six years of the Obama administration — bad luck for the Democrats. And on the Seventh Circuit, the conservative Joel Flaum was replaced by radical-left Candace Jackson-Akiwumi because he didn’t retire in time for Trump to pick his successor. His fellow conservative, Michael Kanne, refused to retire altogether and then died under Biden, who appointed his replacement. And, of course, the most notorious example is the late Ruth Bader Ginsburg, whose failure to retire from the Supreme Court under Obama led to the appointment by Trump of Justice Amy Coney Barrett.

Underlying both the Kanne and Ginsburg cases was a recent trend: Judges have grown interested not only in which president will replace them but also in who, in particular, will take their spots. Kanne wanted a particular successor, while Ginsburg reportedly fretted that her replacement would be less liberal than she was. In the end, she was right.

They were not alone in taking this approach, and given this development in judicial thinking — from “when” to “who” — it bears considering how the process of judges opining on their successors works both for them and for the White House.

First, the background: In the federal system, judges enjoy life tenure. This means that, absent impeachment, they get replaced only when their seats become vacant through resignation, disability, or death. Even judges eligible for retirement can be replaced only if they agree to it. They typically do this by “going senior,” that is, electing senior status, a form of semiretirement established by statute. It’s this power to create a vacancy that gives judges the ability to have some say in the selection of their successors.

When judges seek to influence the choice of their successors, it’s to preserve a legacy. This can be a personal legacy, such as wanting a family member or former law clerk as a successor. Or it can be a jurisprudential legacy — wanting to be replaced by a fellow progressive or a fellow originalist. Still, sometimes it can be a professional legacy, as when a judge hopes to get the right kind of lawyer from the right sort of community replacing him.

Of the three of these, personal legacy is the hardest to justify. It goes without saying that insisting that you need to be replaced by a relative is bad. There’s no real defense for nepotism. Luckily, it almost never happens — at least not successfully. Last Congress, for example, Republicans stopped Julia Lipez, the daughter of a circuit judge in Maine, from occupying a seat once held by her father.

Saying you need to be replaced by one of your clerks is understandable from a judge’s perspective but only objectively defensible if it is a fair estimation of the best replacement on the merits. A judgeship, properly understood, belongs to the American people, not an individual judge; therefore, it shouldn’t be a means to convey a private benefit. And in any event, such an insistence can, like nepotism, cause political difficulties if not handled with care. Again, last Congress, Republicans stopped a circuit judge in Tennessee from replacing herself with her first law clerk.

So, personal connections should probably be out. But what about jurisprudence or professional background?

Seeking a jurisprudential legacy is easy to understand; it’s natural that a judge would want a replacement who shares his jurisprudence. Most, but not all, judges do seem to care about this. If you’re a judicial conservative, you take senior status with a Republican president and Senate; if you’re a liberal, you go senior with Democratic control. During the first Trump administration, it was clear that many judges timed their departures to align with the confirmation calendar, which also held true in the Biden administration.

There’s nothing wrong, in general, with this kind of strategic behavior by judges, although when it slides into open partisanship, it can be a problem. Following the 2024 elections, for example, three judges who elected senior status and were not replaced by Biden had sudden changes of heart and decided to “unretire.” One of them, James Wynn on the Fourth Circuit, even had a retirement party where a congratulatory letter from Barack Obama was read to the revelers. That these judges changed their minds because of the election results presents serious ethical problems, and, indeed, ethics complaints against the three are pending.

Professional legacy can be controversial because it’s inherently subjective. Should a judge have a say in the kind of lawyer who replaces him? Should the replacement be young? Or experienced? Should she be a sitting judge already? Where does she live? These are the sorts of things that tend to come up when judges hold out for a replacement with a specific background.

The fact is, though, that these are areas where federal judges have some specialized knowledge. In most jurisdictions, federal judges are the apex predators of the legal profession. They know the other judges, the local bar, the law school deans, and frequently the politicians. They’re in an unusually good position to have insight into who’d make a good successor, and that’s why decision-makers frequently seek their informal input. They also know the kinds of cases their court sees, the good — and bad — advocates, the strengths and weaknesses of their colleagues, and so forth.

While the appointment process is up to the president and the Senate, these background considerations are legitimate for a judge when influencing the selection of his successor. As a public servant, he is entitled to want his seat shepherded in a way that’s best for his area of responsibility. Professional factors including experience, legal background, temperament, and geography are reasonable considerations in the context of the public good.

This doesn’t mean that judges are entitled to choose one particular replacement with the preferred professional background. Doing so — like demanding the nomination of a clerk — comes very close to using judicial office to confer a private benefit. Absent certain small and insular jurisdictions where it might conceivably be the case, there probably isn’t only one candidate with an acceptable jurisprudential record and professional background available. And, in the end, the president picks, with the advice and consent of the Senate. Structuring a retirement to guide the political branches in a favorable direction differs from telling them whom they should pick.

As a practical matter, too, demanding one replacement and holding out for him almost never works. As we saw with Judge Kanne, it’s a good way to have a stalemate ended by death or disability and have your seat filled by a president who doesn’t care a whit about your input. A judge who wants to have some say about her successor should, therefore, look to work constructively with the president and senators and not get into a game of chicken with the political branches.

What about a judge telling the decision-makers whom not to pick? Unlike demanding a particular successor, saying you won’t vacate your seat for someone you don’t want — judges tend to know who the likely pick is — seems reasonable. Perhaps the candidate is inexperienced or isn’t a generalist, or is a campaign crony of a senator, or is an individual of questionable character. There are myriad good reasons for a judge to know that he does not want his seat to go to someone in particular.

Just as no replacement handpicked by a judge is entitled to a seat, no replacement handpicked by the political branches is entitled to have a seat vacated for him to assume it. A prudent White House or senator will try to find accommodation in these situations. It’s likewise best not to play a game of chicken with a sitting judge.

As judges contemplate their retirement under a second Trump administration, they should keep this general approach in mind: They can and should have an informal say in the process, but they should avoid dictating outcomes. Likewise, the White House and Senate need to recognize that life tenure is a powerful thing, and it would be wise to take the views of retirement-eligible judges into account.

And, of course, time is of the essence. Republicans hold the White House and a healthy Senate majority. But a potentially challenging Senate map is not far off on the horizon. An obstinate White House or retirement-eligible judge could wake up one day to see the ultimate decision in the hands of Chuck Schumer. Those with a say in judicial appointments must stay focused on the opportunity.