The Senate’s 52-48 vote on June 23 to confirm Cory Wilson to the Fifth Circuit court of appeals allows Trump’s 200^th appointment to a life-tenured judicial position—a “landmark achievement” according to Iowa Republican Charles Grassley.

Viewed less passionately, this 200^th appointment marks less of an impact on the federal judiciary than that achieved by several Trump predecessors. It represents chiefly an all-out commitment to fill the courts of appeals with deeply conservative jurists; the district courts have been almost an afterthought.

Wilson is Trump’s 53^rd court of appeals judge. At this point in his recent predecessors’ terms, only Jimmy Carter appointed more—57. However, as a proportion of statutory judgeships, a metric of which Trump often boasts, Trump trails both Carter and Richard Nixon. Trump’s appointees occupy 30% of the appellate judgeships, but Carter’s occupied 40% of the judgeships then in place, and Nixon’s occupied 35%.

More important, the court of appeals are not the entire federal judiciary—arguably not even the most important part from the standpoint of most federal litigants. District courts—though bound by precedents set by their respective appellate courts—have plenty of discretion as they oversee all manner of federal criminal prosecutions and civil disputes involving commercial matters and civil liberties. Federal district courts last year terminated just shy of 400,000 civil cases and criminal defendants; the courts of appeals terminated 48,000 cases, and almost 20,000 of those terminated procedurally—no jurisdiction, for example.

But district courts need judges to function. Majority Leader McConnell boasted yesterday, “there will not be a single circuit court vacancy anywhere in the nation for the first time in at least 40 years.” But there are 73 actual and three announced future district court vacancies (about 10% of judgeships).

An indication of McConnell’s priorities is confirmation times. Median days from nomination to confirmation of the 53 circuit nominees is 136 days. The Senate has taken 238 median days from nomination to confirmation for Trump’s district appointees.

The Senate has confirmed 145 district judges, fewer than those of George W. Bush, William Clinton, and Carter at this point. And as a percentage of district judgeships, Trump’s 21% outranks only two predecessors—Barack Obama and George H.W. Bush.

As to the district and appellate courts altogether (including the Supreme Court), at this point Carter, Nixon, and Kennedy-Johnson appointees constituted a third or more of their respective judgeships. Those of Trump (at 23%), Obama, Clinton, both Bushes, and Reagan cluster in the high teens and low 20% range.

Viewing matters in this light tempers considerably Grassley’s claim of a “landmark” achievement. Indeed, the “achievement” part also needs some tempering. Trump’s high appointment numbers reflect not only an accommodating, filibuster-free Senate but also the over 100 vacancies that McConnell gave him by his unprecedented refusal to confirm more than only a handful of nominees in Obama’s final two years.

The administration and Senate Republicans have been on a tear to remake the federal judiciary. Two-hundred appointments is significant but hardly record-breaking.

       

President Trump threatened during an April 15 pandemic briefing to “adjourn both chambers of Congress” because the Senate’s pro forma sessions prevented his making recess appointments. The threat will go nowhere for constitutional and practical reasons, and he has not pressed it. The administration and Senate Republicans, though, remain committed to confirming as many judges as possible, starting soon after May 4, the date the Senate reconvenes, with Majority Leader McConnell vowing to make judicial confirmations a top priority.

Trump frames judicial confirmations as a contest with his predecessors, consistent with his “presidency-as-reality-television” approach. His two metrics are, first, number of judges appointed. Of recent presidents, at this point he trails only Jimmy Carter. The other metric is the percentage they represent of all statutory judgeships. On that measure, despite his claim that “percentagewise, I blow everybody away except one person . . . George Washington,” he falls in the middle of the pack. As suggested below, he will probably be in the same comparative position on Inauguration Day 2021.

As a preliminary aside, both metrics depend on factors largely beyond presidential control, namely the availability of vacancies and a compliant Senate. Carter benefitted from a 1978 law creating 152 additional vacancies and substantial Senate majorities at a time that confirmations were routine. Trump inherited 103 vacancies (more than any recent predecessor but President Clinton’s 109) thanks largely to McConnell’s effectively shutting down confirmations in 2015-16 under President Obama. Trump’s Senate majority is slim but exceedingly compliant.

Table 1 shows Trump’s comparative standing on May 4, ranked by number of appointments.

Table 1—Judicial Appointments on May 4 of Fourth Year in Office

* Including Supreme Court and Court of International Trade

Table 2 suggests that Trump’s comparative standing at the end of four years will be the same. He needs only eleven more appointments to finish ahead of all but Carter.

Table 2—Trump’s May 4 Record Compared to Predecessors’ Four-year Records

But he will still be in the middle of the pack as to percentage of judgeships filled. Trump would need 146 more appointments to match Carter’s 39% of seats (when there were 672 statutory judgeships. There are now 870; 39% of 870 is 339, 146 more than 193). At least 18 appointments each month between now and December seems clearly beyond reach, even if enough vacancies materialized to which to appoint them. A slightly lower number to match the Nixon and Kennedy-Johnson percentages is similarly unrealistic.

But simply as to number of appointments, what about the 68 more Trump will need simply to match Carter’s number of appointments? And, because the courts of appeals (often but misleadingly called “circuit courts”) have been McConnell’s major preoccupation, is it realistic to expect eight more appointments to match Carter’s 59?

Adding 68 confirmations, including some to the courts of appeal, from May through December 2020 depends largely on:

• How long the Senate shutdown lasts
• How many vacancies are available
• How many more nominations are likely
• How many confirmations McConnell can push through

How long the Senate shutdown lasts

The longer the Senate isn’t confirming judges, the more difficult it will be for Trump to appoint 68 more of them. The chart below shows, however, that if the Senate starts confirming judges early in May 4 as McConnell intends, that the shutdown would not have greatly disadvantaged Trump compared to his recent predecessors.

How many vacancies are available

Presidents can only make appointments to vacant judgeships. There are, as of early May, 77 current or announced district vacancies, more than enough for 68 appointments.

There are, however, only two court of appeals vacancies—both with nominees. Assuming their confirmation, Trump would need six more vacancies to be able to appoint eight court of appeals judges. Plenty of court of appeals (circuit) judges now qualify by age and years of service to leave active status with salaries intact under the statutory retirement rule, thus creating vacancies. However, 38 of them are Democratic appointees, who are unlikely to retire and give Trump an appointment that a President Biden could otherwise make.

Twenty-eight Republican appointees are also “senior status” eligible. One can speculate whether judges who have spurned senior status for several or more years will rush to the exists in the remaining months of 2020. Ten have been eligible for ten or more years and another five for at least seven years.

According to press reports, McConnell has been calling judges urging them to retire and thus create vacancies for Trump to fill. McConnell also seemed receptive to talk-show host Hugh Hewitt’s April 22 suggestion that federal judges “turn in a resignation [sic] letter saying I will retire provided a successor is confirmed by December 31^st and, if not, I am not retiring.” It’s not unusual for a judge to announce retirement “contingent upon confirmation of my successor.” Perhaps some would add the overtly partisan “but I will not execute the paperwork to effect a change of status if I disapprove of my successor’s appointer.”

How many more nominations are likely

In early May, 39 nominees were or soon will be pending at some stage in the Senate. McConnell and Trump could raise Trump’s four-year total to Carter’s 261 by finding 29 more nominees (and confirming them along with the 39 pending nominees). Because many of the current and announced district vacancies without nominees are in states with two Democratic senators, the administration would have to abandon its willingness so far to work to some degree with home-state Democratic senators to find mutually acceptable nominees. (Home-state Democratic senators have had no role in selecting Trump court of appeals nominees.)

How many confirmations McConnell can push through

Normally, it would be a challenge to confirm judges after June or July in a presidential election year, but these are not normal times. Republicans have 53 votes in the filibuster-free Senate that Democrats gave them. McConnell in early April told Hewitt “My motto for the rest of the year is leave no vacancy behind.” The Senate’s recent record shows some hope for the president—it confirmed 91 judges in May through December 2019. It did so, however, without pandemic-related recesses, demands to debate and enact vital COVID-19 legislation, and the call of the campaign trail keeping senators away from Washington.

Even if Trump loses the election, expect McConnell to try to have the lame-duck Republican Senate muster the quorums that would allow it to break precedent by confirming many judges after November. They will claim the need to make up for ground lost to the Senate shutdown—even if voting resumes soon, with only the modest loss of momentum they’ve suffered so far.

These data derive from the Federal Judicial Center’s Federal Judicial Biographical Database, vacancy data available on uscourts.gov, and the author.

       

A December 24 presidential tweet boasted “187 new Federal Judges have been confirmed under the Trump Administration, including two great new United States Supreme Court Justices. We are shattering every record!” That boast has some truth but, to put it charitably, a lot of exaggeration.

Compared to recent previous administrations at this same early-fourth-year point (first term only), the Trump administration and the Senate have:

• seated more life-tenured judges than all but one predecessor, but rank in the middle of the pack as to proportion of judgeships filled;
• had a significant but not revolutionary impact on the party-of-appointing president composition of the appellate judiciary, and less of an impact, by that measure, on the district courts;
• put younger judges on the courts of appeals, which, along with changes in Senate procedure, will strengthen the conservative make-up of the appellate judiciary;
• given more attention to the courts of appeals than district courts, and given more attention to district court vacancies in red states than those in blue states

This post fills in some details. A follow-up will assess Trump’s fourth year prospects.

Appointments and percentage of seats filled

Trump’s and his supporters’ claim of a record number of judicial appointments is largely true. Table 1 displays his numbers against those of predecessors back to the Kennedy-Johnson administration, as of late January of the fourth year of each presidency’s first (and in two cases, only) term. Trump has appointed more court of appeals judges (50) than any predecessor, although Carter comes close, and more judges overall (187) than anyone but Carter, although Clinton comes close.

In how he compares himself to his predecessors, however, Trump doesn’t stop with raw numbers. He also claims that “percentage-wise, I blow everybody away except one person . . . George Washington.” Translation: “I’ve filled a greater percentage of statutory judgeships than all my predecessors except the one who filled all the judgeships created by the first Congress.” Not so: Table 1 shows that at this point, the 21% of statutory judgeships he has filled ranks behind Kennedy-Johnson and Nixon, Carter, and Clinton.

Table 1: Judicial Appointments, Late January, Fourth Year of First Term*

*  Appointments to judgeships with tenure for what Article III calls “good Behaviour”— essentially life tenure rather than term-limited tenure.

**  Washington made multiple appointments to the 16 district and 6 Supreme Court judgeships in place 1789-1797 (there were no court of appeals); turnover was robust due to deaths and resignations.

Party-of-Appointing-President Balance

Table 2 shows that Trump has had a significant but not revolutionary impact on the composition of the courts of appeals.

Table 2: Party-of-Appointing President Balance

When Trump took office, Republican-appointed circuit judges occupied 40% of the 179 statutory judgeships. Today they occupy 54%.

When he took office, Republican appointees were a majority of the active-status judges on four appellate courts—those of the 5^th, 6^th, 7^th, and 8^th circuits. Trump has flipped three others—the 2^d, 3^rd, and 11^th.  As to the conservatives’ bete noir—the 9^th circuit’s court of appeals—the Democratic-appointee majority has gone from 18-7 (with four vacancies) to a thin 16-13.

Still, Trump loyalists’ assertions that he is reshaping  the federal judiciary need context. He has strengthened Republican-appointee majorities on four courts, and achieved thin Republican-appointee majorities on three others. And these figures don’t include senior judges and visiting judges, who sit on the randomly selected, three-judge panels that decide almost all cases. And while party-of-appointing-president is one of the best predictors of judicial decisions, it’s still not  very precise.

Younger circuit appointees

Moreover, Trump’s court of appeals appointees to date are comparatively younger than his predecessors’ and thus may have more staying power. They continue an uneven decline in circuit judges’ age at time of appointment. Table 3 shows that appointees in the first three years of administrations in the 1960s and 1970s had median ages in the mid-50s. Trump’s are in their late 40s. Their likely above-average tenure in office will make it harder for Trump’s immediate successors—if Democratic—to reverse the party-of-appointing-president balance they inherit.

Table 3: Court of Appeals Judges’ Median Age at Appointment as of late January, Fourth Year

* The median age at appointment for Obama’s full 55-judge cohort was 52.8.

Whom has he replaced?

A president’s ability to reshape the courts depends partly on factors beyond the president’s control—including the nature of the available vacancies. Trump might have shifted the court-of-appeals balance more decisively had he been able to replace more Democratic appointees, but circuit vacancies haven’t accommodated him. Table 4a shows that less than two-fifths of his circuit judge appointees replaced Democratic appointees. By contrast, at this early fourth-year point, over half of Obama’s appointees replaced judges appointed by Republican presidents.

Table 4a: Replacing Court of Appeals Appointees of Other Party

In contrast to the Democratic appointee minority status on the courts of appeals, Democratic appointees remain a majority (317 or 53 percent of the 602 active-status district judges) sitting in late January. Trump has mainly replaced Republican-appointed district judges. In fact, Table 4b shows that at this point, most recent presidents have mainly replaced district judges appointed by their same-party predecessors, although all but Obama and Trump were also able to fill some newly created seats.

Table 4b: Replacing District Court Appointees of Other Party

What about the district courts?

The federal district courts, with their 673 statutorily authorized judgeships, are in many ways the backbone of the federal judicial system. Full-blown trials are now rare, but district judges decide motions to dispose of cases without trial, and oversee the pretrial processes in which cases get resolved.

Filling district vacancies is the priority of many lawyers and those whom they represent—commercial interests, law enforcement officials, criminal defendants, civil rights advocates and others. The Trump administration and its Senate allies, however, have given top priority to filling appellate vacancies, perhaps on the somewhat shaky view that the appellate courts make law that binds all judges in the respective circuits.

Trump inherited large numbers of circuit and district vacancies, thanks in large part to Senate Republicans’ unprecedentedly miniscule number of confirmations in the final two years of the Obama presidency. Table 5 shows vacancies during presidencies from Reagan to Trump—those in January of the first year and those in January of the fourth year—and the percentage increase or decrease.

For the second Bush, Clinton, and Reagan administrations, the decline in district vacancies outpaced the decline in appellate vacancies. Under Trump appellate vacancies fell by 94%, but district court vacancies declined by only 17%. Moreover, as recently as early December 2019, there were 87 district vacancies (not 71), an increase over the Inauguration Day figure. It appears that the Senate got serious about confirming district judges only when it essentially ran out of appellate nominees to confirm.

Table 5: Vacancies on Inauguration Day and in early January, Fourth Year, First Term

(Vacancies increased under the first President Bush because Congress created a large number of judgeships in December 1990, many of which remained unfilled a year later. The Obama administration was slow in getting nominations to the Senate, where they then faced minority party resistance.)

Circuit vacancies filled faster than district vacancies

The administration and the Senate took more time to propose nominees to fill district court vacancies than court of appeals vacancies, and more time to approve district court nominees than to approve circuit nominees. As in previous administrations, delay in submitting nominees was greater in states with opposite-party senators, but the greater delay in confirming such nominees (at least during the first three years) is a departure from practice under previous administrations.

Median days, vacancy to nomination

Under Trump, the median time to submit circuit nominees was 167 days after the vacancy became known; for district nominees it was 380. That difference surely reflects in part the decision by the administration and Senate allies to abandon—for circuit nominees—the so-called “blue-slip” prerogative. In Senates during previous administrations, that prerogative empowered senators of either party to shut down Senate processing of home-state judicial nominees to whom they objected. That now-abandoned practice encouraged administrations to negotiate and bargain with home-state senators. Making circuit judge blue slips inoperative reduced the need for time-consuming negotiation. Making them inoperative also decreased any bargaining power that home-state Senate Democratic (or moderate Republican) senators may have had to hold out for less conservative appellate nominees.

On the other hand, negotiations between the Trump administration and home-state senators seem to have continued in some fashion for district nominees. And one would expect more drawn-out negotiations with Democratic than with Republican senators. In fact and not surprisingly, district vacancy-to-nomination variations under Trump are similar to those under Obama, as Table 6a suggests. Under Trump, for example, those 80 vacancies in states with two Republican senators that got nominees, got them in median days of 254, versus 480 days for the 46 nominees to vacancies in states with two Democratic senators. Under Obama, vacancies in states with two Democratic senators got nominees faster than did vacancies in states with two Republican senators.

Table 6a: Median Days to Submit Nominations to District Court Vacancies—Through late January, Fourth Year (parenthetical indicates number)

* Counting from the date on which the incumbent announced that s/he would leave active status at some future point, the day of leaving active status if no announcement—or Inauguration day for inherited vacancies.

Median days, nomination to confirmation

Table 6b, though, reveals a new twist. At least for Obama district nominees submitted by late January 2012, median time to confirmation was about the same regardless of the make-up of the state’s Senate delegation: 195 days for nominees in states with two Democratic senators, and only slightly longer in states with one or two Republican senators.

For Trump district nominees, though, a clearer blue-state/red-state difference appears. The Senate moved nominees in states with two Republican senators to confirmation in 217 median days. It took 412 days for nominees in two-Democratic-senator states.

Table 6b: Median Days from Nomination to District Judge Confirmation—Through late January, Fourth Year (parenthetical indicates number)

Furthermore, it does not appear that the delay in confirming the district nominees from Democratic senator districts was because those nominees were particularly unpopular, at least as measured by Senate votes. Table 7 shows the distribution of negative votes for district nominees based on the make-up of the respective districts’ Senate delegations.

The low-opposition votes (0-10 “no” votes) were fairly evenly split among the four groups, but, of the 54 judges who got 21 or more negative votes, only one involved a nominee from a blue state (as measured by the Senate delegation). Pending a more thorough review of senators’ votes, it seems likely that the blue-state senators voted heavily against nominees from red states but that the Republican senators did not vote heavily against the blue-state district nominees. Nevertheless, the leadership apparently delayed voting on them, thus prolonging the vacancies.

Table 7: “No” votes for Trump’s Confirmed District Judges

A future post will assess the possible contours of nominations and confirmations in 2020.

Data for this paper come mainly from the Federal Judicial Center Federal Judge Biographical Directory (fjc.gov), the judicial vacancy data maintained by the Administrative Office of the U.S. Courts (uscourts.gov), and my own data sets. Thanks to colleague Sarah Binder for comments.

Note: In the original version of this post, “Table 4b: Replacing District Court Appointees of Other Party” quoted the number for President Trump as 88. The correct number is 133.

       

Brookings experts are looking ahead to the issues they expect will shape the world this year and the solutions to address them. Below, explore what our experts have identified as the biggest policy issues in their field for 2020, the ideas or proposals they encourage policymakers to consider, and the overlooked stories that deserve greater attention.

       

Judicial confirmations go on vacation during the Senate’s August recess, but are likely to resume with a vengeance in September. What’s the shape of the Trump administration’s judicial appointments program at this point?

Basically, the administration and Senate have:

• seated a record number of court of appeals (circuit) judges, although changes in the appellate courts’ party-of-appointing-president balance have been less than one might expect given the number of appointments;
• given relatively short shrift to the confirmation of district judges; that may change at least temporarily, given the current paucity of circuit vacancies;
• as a percentage of total judgeships, appointed fewer judges than three recent predecessors and about the same as three others;
• turned mainly to white males as judicial appointees.

For perspective, Table 1 shows the gradual and uneven decline in confirmation rates since Reagan and the more obvious increase in the time it has taken the Senate to move nominations to confirmation.

Table 1: Total Nominations and Confirmations

Note: This table counts Roger Gregory (CA-4) as a Clinton, not a Bush2, appointee.

Confirmation rates in George H.W. Bush’s first two years (1989-90) were over 90%. The December 1990 judgeship bill created a large number of vacancies and nominations, but the Democratic Senate, perhaps with an eye on the 1992 presidential election, confirmed a lower percentage than during the first two years.

The Trump-McConnell confirmation juggernaut has clearly prized circuit over district confirmations—note the greater confirmation rate (93% to 70%) and much shorter time from nomination to confirmation (151 median days to 271). Indeed, Trump’s circuit confirmation numbers, in slightly more than two-and-a-half years, compare favorably to those of his predecessors’ full-term numbers: more appointments (43) than one-term George H. W. Bush (42) and close to Obama’s two-term confirmations (55).

Table 2 compares these same Trump’s numbers (i.e., at the third-year August break) with those of his predecessors at the same point in their presidencies. It shows the same primary attention to filling appellate vacancies. Trump has outpaced his predecessors as to the number of circuit nominations and confirmations, and the Senate has processed the nominations much faster than it did those of his two predecessors. With the 13 district confirmations just before the August break, Trump ranks third among the six most recent presidents.

Table 2: Nominations and Confirmations at Third-Year August Break

The Senate turned its attention to district judges because there are almost no circuit vacancies to fill—one nominee is pending for the Fifth Circuit’s court of appeals and three nominee-less vacancies remain in the courts of the Second and Ninth circuits.

District vacancies, now at 97, have hovered around 100 for Trump’s entire term. The focus on seating circuit judges may satisfy those who relish those courts’ policy-making role but is cold comfort to civil litigants who can’t get their cases heard in the federal district courts, given the high number of vacant judgeships and criminal cases’ statutory priority. For one example, until the pre-recess confirmation surge, the then-nine district court vacancies in Texas constituted 18 percent of that state’s district judgeships and had been vacant for 486 median days.

An aside: in riffing to a group of young supporters in July, Trump seemed to imply that he alone inherited vacancies (“Because, normally, when you become President, you go in and you say ‘Do I have any judges to appoint?” ‘No’.”) In fact, as Table 3 shows, he inherited more vacancies than any of his recent predecessors except Clinton, who reaped the benefit of unfilled judgeships created by the large December 1990 judgeship bill.

Table 3: Vacancies on January 1

Trump benefitted, not from a judgeship bill, but from the Senate’s 2015-2016 unprecedented slow-walking of confirmations. It refused to let Obama fill more than a handful of district vacancies, but it let many vacant district judgeships sit untouched as it concentrated on circuit confirmations.

Reshaping the Court of Appeals

Has the large number of Trump circuit appointees produced big changes in the party-of-appointing-president balance on those courts? Yes and no.

In the aggregate, the percentages have certainly changed. On Inauguration Day 2017, Republican appointees constituted 41 percent of all 179 judgeship and 45% of judges in active status. They now constitute 52 percent of authorized judgeships and 53 percent of active-status judges.

Table 4: Court of Appeals by Party of Appointing President

Those changes would have been greater, though, had Trump been able to replace more Democratic appointees with Republican appointees. In fact, 60 percent of his appointees filled seats previously occupied by Republican appointees. (Of course, judges in general and appointees of any political party in particular are not fungible. Trump’s circuit appointees appear on the whole more conservative than the Republican appointees they replaced and certainly younger as well.)

Furthermore, his appointments were disproportionately made to courts that already had Republican appointee majorities. The 55 judgeships in the courts of appeals of the Fifth, Sixth, Seventh, and Eighth circuits constitute 31 percent of the 179 circuit judgeships, but Trump’s 19 appointees to those courts are 44 percent of his 43 circuit appointees to date. When he took office those four courts were the only ones with Republican appointee majorities. By August 2019, only the Third Circuit’s court of appeals had joined them. It had seven D-appointees and five R-appointees on Inauguration Day, with two vacancies. Today it has six –D-appointees and-eight R-appointees. When Trump fills the two vacancies on the Second Circuit’s court of appeals, that court will go from seven-D-appointees and four R-appointees (and two vacancies) on Inauguration Day, to six D and seven-R appointees. But with only two other vacancies nationwide (one on the solidly R-appointee Fifth Circuit court, the other on the still D-appointee dominated Ninth), no other switches are in the immediate offing.

On the other hand, the balances on eight courts have seen no more than a two-judge switch (e.g., the Fourth Circuit’s court of appeals was 10 D-appointees and five R-appointees on Inauguration Day. The balance is now nine-six). The eight courts with basically the same balance are those of the D-appointee-majority First, Fourth, Tenth, DC and Federal circuits, and the R-appointee-majority Fifth, Sixth, and Eighth circuits. The Seventh Circuit’s court of appeals went from a six R-appointee, three D-appointee majority (with two vacancies) to a nine-two R to D appointee balance.

Number of appointments/percentage of judgeships

Trump often says that he has appointed more circuit judges at this point than any of his predecessors, and he’s correct. His 43 appointments, as Table 5 shows, leave his predecessors in the dust.

But his frequent boasts as on July 23  to a conservative youth group about all his appointees— “percentage-wise, I blow everybody away except” George Washington—clearly are not true even as to recent presidents.

Table 5: Appointees as of Mid-August, Third Year*

*Includes the Court of Appeals for the Federal Circuit and the Court of International Trade and predecessors
**  Counts Roger Gregory (CA4) as a Clinton appointee

Table 5 shows, first, although Trump’s 43 circuit appointees occupy 24 percent of today’s 179 statutorily authorized judgeships, Kennedy’s and Nixon’s circuit appointees as of their third-year August recesses occupied greater percentages of the statutorily authorized judgeships at the time, And, overall—including all life-tenured judgeships—Trump appointees’ percentage of authorized judgeships (17 percent) falls in the mid-range of his predecessors. If Trump gets a second term—and the Senate stays in Republican control—his eight years of appointees may occupy a greater percentage of judgeships than all but one of his predecessors, but he’s clearly not there yet.

Demographic composition

Finally, Trump has—so far—reversed the Obama tendency to appoint other than white males to the federal courts. Table 6 shows that Clinton appointed a slight majority of white males, W. Bush somewhat larger majorities, while fewer than half of Obama’s appointees were white males. Almost three-quarters of Trump’s appointees, however, fit that category.

Table 6: Court of Appeals Demographics

All in all, the Trump judicial appointment machinery has been vigorous, especially as to the number of circuit judges appointed to date. Post-recess, the Senate no doubt will dig into the district vacancies inherited from the Obama presidency and those accumulated since 2017. But the pattern of circuit judge replacement, the paucity of circuit vacancies, and the possibility that few additional Democratic appointees will leave active status over the next year or so make it too early to talk about Trump’s fundamentally restructuring the federal judiciary. And should he turn out to be a one-term president, or even if he is reelected but Democrats take control of the Senate in 2021, such talk will become idle chatter.

       

On June 21, 2019, Brookings Vising Fellow Russell Wheeler testified at a hearing of the House of Representatives Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. Wheeler argued in his testimony and response to members’ questions that:

1.  The U.S. Supreme Court should create a code of conduct to serve, as does the Code of Conduct for United States Judges, as a guide to ethical behavior, not as a disciplinary mechanism. The Court should create the code of its own volition. Legislative proposals to have the United States Judicial Conference prepare a conduct code for the Supreme Court runs counter to the statutorily created governance structure of the federal judiciary. Imposing a disciplinary mechanism on Supreme Court Justices similar to the mechanism that Congress has created for other federal judges would be “a cure worse than the disease.”

2.  Generally, federal judges should provide the reason or reasons for which they deny motions that they recuse themselves in particular proceedings, but disclosure policies should make an exception in the case of  disclosure for sua sponte recusals for non-financial reasons (such as potentially embarrassing matters involving the judge, her family, and third parties).

3.  The U.S. Judicial Conference’s policy of release on request, and after redaction, of judges’ statutorily required financial disclosure statements is reasonable.

4.  Proposals to require judges to place their financial holdings in blind trusts runs counter to the federal judicial disqualification statute’s mandate that judges keep themselves informed about their “personal and fiduciary financial interests.”

Wheeler noted with approval the observation in the Code of Conduct for U.S. Judges that judges should expect to be the subject of constant public scrutiny and should accept willingly restrictions that other citizens would find burdensome. But those restrictions should not be so obtrusive as to discourage qualified individuals from entering or remaining in judicial service. Balancing those competing interests is a difficult task.

To read his full testimony, click here.

       

In 1996, to head off calls to impeach a life-tenured federal judge for ill-considered remarks about police officers, Chief Justice William Rehnquist cautioned that “judicial independence does not mean that the country will be forever in sway to groups of non-elected judges.” He recalled Franklin Roosevelt’s failed 1937 proposal to pack the Supreme Court by adding six pro-New Deal justices, but added that vacancies soon allowed FDR in regular order to achieve a New Deal-friendly nine-justice Court (and avert a threat to the Court’s legitimacy). “[T]here is,” Rehnquist said, “a wrong way and a right way to go about putting a popular imprint on the federal judiciary.” His “right way”: popularly elected presidents and senators reshaping the judiciary by the normal process of filling vacant judgeships.

Today, Democratic politicians and others under a “pack the Court” banner advocate adding two or more seats to the Supreme Court to undo the slim five-justice Republican-appointee majority. Former Attorney General Eric Holder, for example, said recently, “Given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations.”

Congress doesn’t make major structural changes in the federal judiciary absent long-festering dysfunction; it took several decades to create the intermediate appellate courts in 1891. The current proposals to enlarge the Court won’t go anywhere soon, and they shouldn’t. Adding seats could turn the size of the Court into a partisan yo-yo dependent on the prevailing winds in Washington. The current Court, however, as I’ll explain, could provoke a legitimacy deficit that could make structural change more plausible.

Rehnquist’s 1996 comments recalled, perhaps unwittingly, the late Yale political scientist Robert Dahl’s classic article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Dahl, a preeminent democratic theorist, wrote that article in 1957 amid complaints that the Warren Court was integrating public schools and protecting suspected Communists’ civil liberties, contrary to majority sentiment.

Dahl acknowledged that the Court jeopardizes its “unique legitimacy … if it flagrantly opposes the major policies of the … [policymaking] alliance” dominant at the time. But, he said, that has not been a major problem because historically, presidents on average have appointed two justices per term. A two-term president’s four appointments would normally reel in an out-of-the-mainstream Court majority. Dahl’s case-law analysis let him conclude that the “policy views dominant in the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.” That made it “unrealistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.”

When Dahl wrote and for some years after, his appointments analysis was solid. From 1869 (when Congress fixed the size of the Court at nine)[1] through 1993 (Grant through H.W. Bush), all but three of the ten two-term administrations appointed four or more justices. Eight of the ten one-term administrations appointed two or more. Had FDR appointed any justices in his first term (1933-1936), he might have diluted the solid bloc of “four horsemen”— appointed between 1910 and 1922—who regularly picked up at least one or more votes to create what Dahl called the “disaster [of] the early New Deal cases.”

So, for most of U.S. history, the non-elected, non-term-limited Supreme Court has maintained its legitimacy because appointment patterns have kept it fairly well aligned with dominant lawmaking majorities.

Until the 1950s, justices’ median tenure varied in the 11 to 15 year range. Twenty-year-plus terms began to increase with the 1960s appointees, and the tenure of all but one of the seven justices appointed between 1981 (O’Connor) and 1994 (Breyer) exceeds 20 years (Souter served 19). Consequently, since 1993 presidents have had fewer vacancies to fill than did their predecessors. Presidents Clinton, W. Bush, and Obama served two terms but each had only two appointments (putting aside the 2016 Scalia vacancy that arguably Obama was entitled to fill).

The composition of the Court today and for some years to come may challenge the Dahl/Rehnquist assumption that the Court will not and should not long be far afield from the policy views dominant among national law making majorities.

The Court has five Republican and four Democratic appointees, comprising conservative and liberal-moderate blocs as shown below. Most decisions do not split that way—of the current term’s 25 decisions announced through early April (many on fairly technical questions), only two did, while 14 were unanimous. But clearer divisions are likely to emerge in cases with greater policy significance—which are often released in the days leading up to the Court’s end-of June adjournment.

The two most recent Republican appointees might well serve at least 25 more years, and Chief Justice Roberts and Justice Alito, at least 15 more. If President Trump is able to replace Justices Ginsburg and Breyer, the Republican-appointee majority on the Court will likely be concrete-solid for two decades or more.

In noting that presidents’ appointments generally kept the “policy views dominant in the Court … [in] line with the policy views dominant among the law making majorities,” Dahl no doubt assumed that presidents’ popular election victories meant that they generally shared those policy views. In 1957, it had been seven decades since the presidential popular-vote winner lost the Electoral College.

Today, four of the five conservatives were appointed by presidents who gained office despite losing the popular vote. President George W. Bush appointed Chief Justice Roberts and Justice Alito early in his second term, which he won with a majority of votes, but a necessary prelude to that second term was his first term, secured with an Electoral College victory despite a narrow popular vote loss. And a president who lost the popular vote by nearly three million has (so far) filled two vacancies, including one that in normal times would have been filled by a popular-vote majority president (Obama, who saw the Senate refuse to consider his March 2016  nominee, Merrick Garland). Contrary to Dahl and Rehnquist, today’s Court majority is not a product of national preferences as revealed in the popular presidential vote.

Furthermore, until the 1960s, the Senate confirmed most Supreme Court nominees by voice vote. And almost all recorded votes before and after the 1960s had sufficient aye votes to leave little doubt that the senators supporting the nomination represented a majority of the population.

The votes for the current Court were:

The senators casting aye votes for the first six on the list represented a majority of the U.S. population. Those voting for Justices Gorsuch, Thomas, and Kavanaugh did not, based on ascribing the total state population to the “aye” column where both of a state’s senators voted aye, and half of it when the vote was split. Thomas’s aye votes represented 48.7%, Gorsuch’s, 46.6%, and Kavanaugh’s, 44.4%. We shouldn’t make too much of these figures, given the tug of competing pressures in nomination politics (and accepting the constitutional fact of a non-representational Senate). But they suggest at best another weak link between national policy preferences and majority support for three members of the Court’s conservative bloc.

Thus, the question: In 2020, voters may well give a popular and Electoral College victory to a candidate with at least a slightly left-of-center disposition, along with a Democratic Congress. That lawmaking majority would likely produce legislation about the environment, health care, agency regulations, legislative gerrymandering, civil rights and gender matters, and other areas. Will this Court, as presently constituted or with even a greater Republican majority, turn back constitutional challenges to that legislation? Or will its conservative majority—placed in office by presidents who lost the popular vote and helped by the constitutionally malapportioned Senate—invalidate those laws?

If the latter, the Court may resemble the Court of Roosevelt’s first term and thus provoke another challenge to the Court’s legitimacy. The case for structural change will grow stronger, unless judicial statesmanship can modulate the jurisprudential tendencies of the conservative majority. In 1937, Chief Justice Charles Evans Hughes defended the Court against FDR’s charges that it was behind in its work and thus needed more members. That same year, in several key cases, he and Justice Owen Roberts signaled—even before Roosevelt’s first appointee— an end to the slim Court majority that had resisted state and national economic regulatory legislation.

Footnote

[1] Nine was the number of judicial circuits that the 19th-century justices served in their capacity as trial judges on the circuit courts that met in each judicial district. The number had fluctuated between five and ten, depending on the number of circuits.

       

The Trump White House, with Senate Republicans and the Federalist Society, has been appointing courts of appeals judges with bulldozer efficiency. The 29 circuit appointments to date is the highest number of any president at this point in his tenure, facilitated partly by a large number of vacancies. How many more appointments will occur in the next two years depends on how many more vacancies occur, which is uncertain at best.

Despite the 29 circuit appointments, Trump and company have only modestly changed the party-of-appointing-president balance on the court of appeals. Of Trump’s 29 circuit appointments, 19 replaced Republican appointees. Of the 16 current and announced vacancies, 9 were created by Republican appointees.

To be sure, Table 1 shows that when all current vacancies are filled (and were no more to occur), Republican appointees would comprise 54 percent of all active circuit judges, up from 44 percent on Inauguration Day. But only one court of appeals, that of the Third Circuit, will have changed from a Democratic to a Republican-appointee majority, although there will be noticeably more Republican appointees on the Second, Ninth, and Eleventh circuits’ courts. Mainly, though, the Trump circuit appointments have strengthened Republican-appointee majorities on four courts that already had such majorities—those of the Fifth, Sixth, Seventh, and Eighth circuits.

Table 1: Appellate Court Appointees on Trump’s Inauguration Day and After Filling All Current Vacancies

How many more circuit judges can Trump appoint and how much more can he change the face of the appellate courts in the remaining two years of his first term?

Because the Senate will likely confirm almost anyone he nominates, the answer depends on how many vacancies occur, in particular vacancies created by Democratic appointees, an obvious fact noted by many observers.

A judgeship becomes vacant when the judge occupying it leaves active (full-time) status by taking senior status, retiring, resigning, dying, or getting appointed to another court, or getting impeached and convicted. (Congress creates vacancies when it creates additional judgeships to fill, but Congress has not created any circuit judgeships since 1990.)

Senior status is by far the most common form of vacancy creation. Judges become eligible to take this form of statutory semi-retirement, or to retire entirely (keeping their salary in either case), when they turn 65 and their years of service in life-tenured judgeships sum to 80 (the so-called “rule of 80”). (A 67 year-old judge, for example, who had been appointed at age 54, would be eligible: 67+ 13 = 80.) Based on data compiled from the Federal Judicial Center’s Federal Judge Biographical Data Base, of the 334 circuit judges who have created vacancies since 1978, 87 percent of them did so by going senior, retiring, or resigning. Senior status alone accounts for three fourths of all vacancies created.

In that period, on average about seven judges per year took senior status, although the number has ranged from one to 12 per year. On average, retirements occurred less than once a year and resignations even less often.

Trump inherited 17 circuit vacancies on Inauguration Day and since then has benefitted from an unusually high number of additional vacancies, most created by Republican appointees, at least some of whom didn’t want Obama naming their successors. Since Inauguration Day, 21 circuit judges (15 of them Republican appointees) have taken senior status, and four Republican appointees retired from active service. Trump created two more circuit vacancies with his Supreme Court appointments. (A death accounted for the 28^th vacancy since Inauguration Day)

If that accelerated pace of vacancy creation keeps up, Trump will continue to appoint a large number of circuit judges. Although hardly dispositive, history can inform speculation of whether that pace will keep up and whether Trump will be able to replace Democratic appointees. Recent history does not suggest a surge in vacancies.

There are plenty of potential future vacancies. Of the 167 circuit judges in active status in early December, 65 (by my count) are now eligible to leave active status under the rule of 80, and six more will be eligible by July 1, 2020. Of those 71, 40 are Democratic appointees. If all eligible Democratic appointees left active status and Trump filled all those vacancies, there would be a 136 Republican-appointee stronghold in the courts of appeals. To put this figure into perspective, after 12 years of Republican judicial appointments (1981-1993), President Clinton inherited only a 119-Republican-appointee majority.

But being eligible to take senior status or retire and actually doing it are two different things. Indeed, of the 65 now eligible, 23 have been eligible for 20 years or more. It’s unlikely that many of them and many others already eligible will voluntarily depart active status in the next 18 months.

Judges take senior status for a variety of reasons, including health and retaining a judicial salary with a reduced (or even no) workload. Judges retire under the rule of 80 because they tire of the work and can keep their judicial salary and, if so disposed, earn additional money from other employment, including, for example, as well-paid arbitrators or mediators.

On the other hand, judges eschew senior status or retirement because they enjoy full-time judging or don’t want the current president to replace them, or both. Democratic appointees in recent years have been more inclined to leave active status with a Democrat in the White House than have Republican appointees during Republican administrations—and given President Trump’s potential to transform federal courts, liberal justices, especially those appointed by Democratic presidents, may be even less motivated to leave the bench. Table 2 shows the senior-status patterns of the 117 circuit judges currently now or soon to be in senior status.

TABLE 2: Judges Currently or Soon to Be in Senior Status

And a large spate of Republican appointees leaving active status in the Trump administration’s third and fourth year would not reflect practice in recent Republican presidencies—1983 and 1984, and 1987 and 1988 for Reagan, for example. In the ten such years since 1983, Republican appointees on average took senior status, retired, or resigned 3.6 times per year, compared to 4.1 active-status departures for Republican appointees in all 41 years. Democratic appointees, in those same ten years, took senior status, retired, or resigned on average 1.9 times per year, versus 3.0 such departures per year for all years.

Given these patterns, and given the current environment and president, Democratic appointees seem unlikely to create many vacancies voluntarily over the next 18 months, and if they don’t, the party-of-appointing-president balance that Trump and his allies have achieved in his first two years may not look much different at the end of four years, and look similar to the 100-Republican-appointee majority that Obama inherited in 2009. Republican appointees may leave active status, but not at the pace of the last two years, limiting Trump’s ability to continue staffing the appellate courts with highly conservative appointees.