When Donald Trump enters the White House on Inauguration Day, he will be able to fill more seats on the courts of appeals than President Obama did when he took office eight years ago, which could give him the chance to transform the judiciary into a more conservative branch of government.
The president-elect’s preparation to fill the Supreme Court’s vacant seat may be getting the most attention, but it’s just “the tip of the iceberg,” said Lena Zwarensteyn, the American Constitution Society for Law and Policy’s strategic engagement director.
Seventeen seats will be vacant Jan. 20, according to data from the Judicial Crisis Network and the Administrative Office of the U.S. Courts, including 14 seats that are already vacant. Nominees for five of those seats are pending. When Obama entered office in 2009, 13 seats were vacant, according to a Congressional Research Service report.
And there is potential for more. Nearly half of all seats on the 13 federal appeals courts, 88 of 179 spots, will be vacant or eligible to be vacant on Inauguration Day, according to the Federal Judicial Center.
While the number of actual vacancies on the courts of appeals’ 13 circuits does not look likely to approach their potential as Trump takes the oath of office, the chance of turnover is rising as judges get older. The 7th, 6th, and 5th circuit courts have the possibility for greatest turnover at the beginning of Trump’s presidency. About 82 percent of seats on the 7th Circuit Court are vacant or eligible to be on Inauguration Day, followed by 62.5 percent of seats on the 6th Circuit Court, and 59 percent of the seats on the 5th Circuit, according to Judicial Crisis Network data. Those circuits cover states from the Midwest and the South.
Many of the potential vacancies come because of judges eligible for “senior status,” a form of semi-retirement in which senior judges take on a lighter workload voluntarily while receiving retirement compensation.
Beginning at age 65, judges are eligible for senior status if their age combined with their years of active service equals 80, commonly referrred to as the “Rule of 80,” according to the Administrative Office of the U.S. Courts. Twelve of the judges eligible for senior status already exceed the average age of life expectancy for Americans, which could provide one route for the number of vacancies to rise during the next four years under Trump.
However, Zwarensteyn said she thought some judges would be “pausing” on taking senior status because of Trump’s victory and because the confirmation process to install a replacement has become so contentious, a situation she calls “really, really unfortunate.”
Now that the Republican Party controls both Congress and the White House, the spots may be more likely to be filled than under a divided government, she said.
The district and circuit courts “today serve as the final arbiter of more than 99 percent of all federal court litigation,” according to a Congressional Research Service report. That is why the vacancies on those courts provide Trump the opportunity to push the federal courts in his direction and have an influence over which cases make it to the Supreme Court.
One obstacle that could prevent Trump from getting his nominees confirmed is senators’ involvement in the confirmation process via the Senate Judiciary Committee’s “blue slip” policy.
Under the policy, a state’s senators are consulted by the administration before a president nominates a judge from that state, no matter the party affiliation, reads a Congressional Research Service report that explains the blue slip policy. And a senator can block a nominee whom he or she opposes from receiving a Senate Judiciary Committee hearing or vote.
Since Senate Judiciary Committee Chairman Chuck Grassley is expected to observe the blue slip policy, Democratic senators would be able to reject Republican nominees selected by Trump from the Democrats’ home states.
Still, incoming White House chief of staff Reince Priebus said recently that the incoming Trump administration plans to move swiftly to fill the vacancies.
“We’re going to be looking at all of these systems in all of these circuits, and making sure that the appointments are filled, the appointments are filled early, and that whatever adjustments need to be made are going to be debated, talked about, and the appropriate action moving forward will be had,” Priebus told Hugh Hewitt’s radio show.
With Democrats controlling a majority of the seats occupied on the appeals courts, Trump’s presidency has the potential to provoke heated confirmation fights in the Senate. Key Senate Republicans have already begun signaling that they do not support a rules change, dubbed the “nuclear option,” that would assist Trump in getting his forthcoming Supreme Court nominee swiftly confirmed. Trump’s effort to fill the circuit courts’ vacancies could become just as rancorous.
