With the Senate Republicans’ unprecedented obstruction of Merrick Garland’s nomination and a trio of current justices soon to be or already over age 80, the future of the Supreme Court is central to this year’s election. But the focus on the Supreme Court overshadows the election’s larger meaning for the courts. No matter who the next president is, he or she will have also a significant impact on the makeup of the federal judiciary by appointing judges to the lower courts. In this post, we predict how significant that impact will be. By looking at how the circuit courts have changed in the recent past, combined with how many judges are eligible to retire in the coming years, we get a relatively clear picture of how the next two presidential elections will affect the circuit courts’ composition.
Because the Supreme Court hears only around 80 cases each year, the circuit courts, which on the whole decide over 30,000 cases per year, often render the final word on important questions of federal and constitutional law. This is all the more true with an eight-member Supreme Court that can deadlock without resolving even the small number of cases it does hear. That happened with the latest challenge to the Affordable Care Act’s contraception mandate, which the Court recently remanded to various courts of appeals without addressing the merits. And with just months to go, circuit courts will decide whether the November elections will be held under the cloud of discriminatory voter ID laws and other voting restrictions. The upshot is clear: when it comes to decisions that profoundly impact our daily lives, the Supreme Court isn’t the only game in town.
To predict the number of circuit court judges the next president will appoint, we focused on the “Rule of 80”—the rule that determines when federal judges are eligible to either retire or assume senior status, a semi-retirement in which judges take a reduced caseload and the president appoints a replacement. Under the rule, judges are eligible once they turn 65 and their age plus years of service adds up to 80. So a 65-year-old judge with 15 years of service is eligible to take senior status, as is a 66-year-old judge with 14 years of service.
We first applied this rule to determine the number of eligible judges in the past, and found that, during the first terms of Presidents George W. Bush and Barack Obama, eligible circuit court judges retired or took senior status at an average rate of 39 percent. During their entire eight-year presidencies (which for Obama is obviously incomplete), eligible circuit court judges left the bench at an average rate of 44 percent. We then applied the Rule of 80 prospectively to calculate how many circuit judges will be eligible to leave the bench over the next two presidential terms (see the charts at the bottom for details). Applying the historical rates of departure to these eligible judges, we get an approximate count of how many vacancies the next president will have to fill.
Admittedly, these numbers are not especially rigorous. They are drawn from a limited data set (the current and immediately prior administrations), and do not account for the party of the president who appointed each eligible judge (that is, whether Republican-appointed judges leave at a higher rate during Republican administrations, and vice-versa). Nonetheless, they provide a useful, if rough, illustration of how the elections will impact circuit court composition.
Below, a series of animations walk through both historical and anticipated changes to each circuit.
First, we look back at how the circuit courts have shifted since the Clinton administration. When Clinton left office, three courts were split evenly among Democratic and Republican appointees, seven circuits had a majority of Republican appointees, and just three circuits had a majority of Democratic appointees. At the end of the Bush presidency, two circuits were split evenly, only one circuit had a majority of Democratic appointees, and 10 had a majority of judges appointed by Republican presidents. Now, nearing the end of Obama’s second term, nine of the 13 circuits have a majority of Democratic appointees, while four—the Fifth, Sixth, Seventh, and Eighth Circuits—remain majority Republican.
If the next president is a Democrat, three more circuits would flip to Democratic majorities after four years, with only the Eighth Circuit maintaining a slight Republican majority. After a two-term Democratic presidency, all 13 courts of appeals would have a majority of Democratic-appointees.
A Republican president would alter the balance of eight circuit courts in his or her first term. Three would shift from Democratic majorities to even splits, and five others would flip from a majority of Democratic-appointees to a majority of Republican appointees. After a two-term Republican presidency, nine circuit courts would have a Republican majority while four would be evenly split. None would remain majority Democratic-appointed.
Finally, here are the details on how many judges will be eligible for senior status in each circuit, first by 2021:
And then by 2025: