One of the most lasting impacts of President Trump’s administration will be his appointment of conservatives to lifetime positions in the second-highest courts in the land. And he’s not done yet.
The Senate awaits Trump’s nomination of two circuit-court judges in Washington, D.C. and New Orleans. If confirmed they will join the 51 circuit judges Trump has appointed, more than any of his modern predecessors did at this time in their administration.
But Trump may get additional vacancies to fill this year. More than two-dozen appellate judges appointed by Republican presidents will be eligible to take senior status before the November election, according to the conservative Article III Project. Should they decide to take that form of quasi-retirement or step down entirely, it would create additional vacancies for Trump and the Senate to fill.
“If there are Republican-appointed judges [who] care about the judicial philosophy of the judge who will replace them, there is a short window of opportunity where they can retire or semi-retire and the president and the Republican Senate can replace them before the election,” said Mike Davis, the Project’s president and Sen. Chuck Grassley’s former chief counsel for nominations during his chairmanship of the Judiciary Committee.
Top of the agenda is naming a replacement for Judge Thomas Griffith, who told the court last week he plans to retire Sept. 1. His seat on the D.C. Circuit is a crucial one: the downtown courthouse is a powerful forum for federal-policy review and has acted as a launch pad for four sitting Supreme Court justices.
Trump must also name a nominee to replace Judge Grady Jolly, who took senior status in 2017. The White House nominated Judge Sul Ozerden in June to the position, but Congress returned Ozerden’s nomination in January in the face of conservative opposition. A White House aide they weren’t prepared to announce either nominee just yet.
But progressive groups are already promising to oppose either confirmation, with a particular focus on the D.C. Circuit.
“Presidents have generally not been able to confirm controversial circuit-court judges in the last year of their term, and that’s the so-called Thurmond Rule,” said Christopher Kang, chief counsel of the progressive Demand Justice.
The Thurmond Rule, also called the Leahy Rule by Republicans, is a common trope used by the congressional minority to object to the confirmation of judges with lifetime tenure during a presidential election. Kang recalled that in 2012, then-Senate Minority Leader Mitch McConnell filibustered efforts to confirm President Obama’s circuit- and district-court judges.
Nevertheless, Trump could still get more chances to shape appellate courts. McConnell, now leading a small but unified Republican majority, has repeatedly said he hopes to “leave no vacancy behind” this year. That’s especially true of circuit judges, who often act as the last word in litigation given the Supreme Court’s limited docket.
“Maybe now if we see, for example, Republicans ram through yet another nominee to the D.C. Circuit, which will be controversial … maybe some of these Republican-appointed judges will sort of look and say, ‘oh, well, you know what, if they’re still willing to rubber-stamp this ideologue to the D.C. Circuit, maybe I haven’t run out of time yet and I really can still take senior status,’” Kang said.
Federal statute allows for judges who are 65 or older, depending on the length of their tenure, to take senior status, where they are still paid to hear and decide cases but cannot vote in en banc decisions of the whole court. In the meantime, the White House can nominate a new fulltime judge with lifetime tenure for the Senate to consider.
In total, nearly six-dozen circuit-court judges will be eligible to take senior status by July, according to Brookings Institution Visiting Fellow Russell Wheeler. A slight majority of them were appointed by Democratic presidents, and about a third have been eligible to semi-retire for at least two decades.
“We’ll probably see a few, but it’s hard to predict because it’s such a personal decision,” said Carrie Severino, president of the conservative Judicial Crisis Network.
Guessing the next vacancy is a bipartisan activity. The Alliance for Justice, a progressive group active on judicial confirmations, has already started identifying potential nominees for the next Democratic administration to appoint to replace sitting federal judges eligible to take senior status.
“I would anticipate that there’s many judges nominated by Presidents Clinton and Obama who are already eligible for senior status that hopefully do not want to give this president, an individual who has been impeached and has demonstrated such contempt for the rule of law, an opportunity to fill even more vacancies,” said Daniel Goldberg, AFJ’s legal director.