In 2013, when Democrats controlled 53 of 100 Senate seats, Majority Leader Harry Reid, D-Nev., invoked the so-called ‘nuclear option’ in order to expedite the appointment of certain executive branch positions and also federal judges below the Supreme Court level. This meant that the next president would have a much freer hand appointing his cabinet. But it also meant that President Obama’s federal district and circuit court judges could be pushed through without Reid having to make concessions the minority party was seeking.
Then came Election 2014, in which Republicans gained nine Senate seats and the majority. In the time since, only 22 of Obama’s judges have been confirmed — the smallest number, apparently, since the Truman era. Obama has 59 nominations that are currently languishing.
The Washington Post estimates that Trump will inherit 103 vacancies, and the federal court system estimates 127 using a slightly different methodology that includes announced vacancies. Either way, that’s twice as many vacancies as Obama was able to fill immediately when he became president in 2009. And thanks to Reid, Trump can give a lifetime judicial appointment to anyone who doesn’t lose the support of at least three Republican senators, although Senate tradition (assuming it is respected) will require at least one Democratic senator to sign off on many of those appointments.
The federal court system is already dominated by Democratic presidents’ appointments. Russell Wheeler of the Brookings Institution estimated last month that Democratic appointees currently hold 51 percent of the 673 district court judgeships, with Republicans holding only 34 percent and the remainder being vacant. In the next four years, 216 district court judges (the majority of them Republican appointees) will be eligible to take retirement or senior status.
On the appeals court level, Trump will have an immediate opportunity to appoint 17 judges to vacancies among the 179 circuit court judgeships. Based on Wheeler’s estimates, Democratic appointees currently comprise 51 percent of circuit court judges, with Republican appointees holding 40 percent and the vacancies accounting for the rest.
In both cases, making reasonable assumptions about who will retire or take senior status, Wheeler believes that Trump will be able to establish Republican-appointed majorities in the lower courts. He will mostly replace Bush or even Reagan appointees, but there will surely also be several retiring Democratic-appointed judges who leave active service.
Many conservatives who reluctantly voted for Trump did so on the promise that he might turn the nation’s courts in a more conservative direction. The current Supreme Court vacancy is just one part of that fight — given that the high court only hears so many cases, the overall composition of the lower courts is nearly as important. They will not have to wait too long to see whether Trump’s word was good — or at least whether he will leave it to the conservatives in his administration to bring him the names for his appointments.
