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Opinion How President Trump will shape the federal courts

Donald Trump at an election night rally last year in New York. (Evan Vucci/Associated Press)

Appointments to the federal bench are often one of a president’s most significant and most lasting legacies. President Obama appointed more than 300 judges to the federal bench, altering the balance of several federal appellate courts during his eight years in office.

As Donald Trump is inaugurated as our nation’s 45th president, there are 114 pending vacancies in the federal courts. This represents just over 12 percent of the federal judiciary and the largest percentage of judicial seats vacant for an incoming president since Bill Clinton was inaugurated in 1992 (when just over 13 percent of judicial seats were vacant).

An additional 14 sitting judges have announced their plans to take senior status or retire in the coming months, creating an additional 14 vacancies. (The Administrative Office of the U.S. Courts keeps track of current vacancies as well as pending vacancies.) We can also expect many more vacancies to materialize over the next four years.

According to a Ballotpedia analysis, a majority of currently sitting judges will become eligible to take senior status at some point in the next four years. Of those, a majority were nominated by Republican presidents, which both increases the likelihood that they may take senior status during this period, but also lessens the effect of the resulting vacancies on the ideological balance of individual courts.

Of the existing vacancies, most attention focuses on the Supreme Court and Trump’s opportunity to replace the late justice Antonin Scalia. But Trump’s appointments to lower courts — and the U.S. Courts of Appeals in particular — will also be very important.

On the U.S. Circuit Courts of Appeal, there are currently 17 vacancies, with two more to come in February. Trump’s nominations for these spots will be significant, but they will not do much to alter the ideological balance on individual courts. Other than the U.S. Courts of Appeals for the 2nd and 3rd Circuits, Trump’s initial nominees will either expand Republican-appointed majorities or modestly bolster Republican-appointed minorities.

Here’s a quick rundown of the existing vacancies and their effects on the balance of federal appeals courts:

First Circuit: No vacancies. Among sitting judges there are four Democratic nominees and two Republican nominees.

Second Circuit: Two vacancies. Among sitting judges there are seven Democratic nominees and four Republican nominees. If the two vacancies are filled by Trump, the 2nd Circuit will be close to balanced and look much like it did when Obama took office.

Third Circuit: Two vacancies. A third vacancy will be created on Feb. 1 when Judge D. Michael Fisher takes senior status. This is the federal appellate court where Trump’s appointees could have the most immediate impact. Among sitting judges there are seven Democratic nominees and five Republican nominees (including Fisher). If Trump is able to fill these vacancies, the 3rd Circuit will have an equal number of Democratic and Republican nominees.

Fourth Circuit: No vacancies. Among sitting judges there are 10 Democratic nominees and five Republican nominees.

Fifth Circuit: Three vacancies. Among sitting judges there are five Democratic nominees and nine Republican nominees.

Sixth Circuit: One vacancy. A second vacancy will be created on Feb. 28 when Judge Danny Boggs takes senior status. Among sitting judges there are six Democratic nominees and nine Republican nominees (including Boggs). Note that although Judge Helene White was appointed by President George W. Bush, I count her as a Democratic nominee because she was initially nominated by President Clinton and her nomination by Bush was part of a bipartisan deal in which this nomination was traded for an end to Democratic obstruction of other nominees to the 6th Circuit.

Seventh Circuit: Two vacancies. Among sitting judges there are three Democratic nominees and six Republican nominees.

Eighth Circuit: Two vacancies. Among sitting judges there is only one Democratic nominee and eight Republican nominees. (It is quite remarkable that, even after Obama’s eight years in office, there is still only one Democratic nominee sitting on this court. Six of the 8th Circuit’s current judges were appointed by Bush.)

Ninth Circuit: Four vacancies. Among sitting judges there are 18 Democratic nominees and seven Republican nominees. There are more vacancies on the 9th Circuit than any other court, but they will not have much of an impact given the overall size and composition of the court.

Tenth Circuit: No vacancies. Among sitting judges there are seven Democratic nominees and five Republican nominees.

Eleventh Circuit: One vacancy. Among sitting judges there are eight Democratic nominees and three Republican nominees.

Federal Circuit: No vacancies. Among sitting judges there are eight Democratic nominees and four Republican nominees.

D.C. Circuit: No vacancies. Among sitting judges there are seven Democratic nominees and four Republican nominees.

A few additional notes. First, I did not account for judges who have already taken senior status on the various courts. While this does not affect the overall balance of individual courts, nor does it generally affect the balance of appellate courts when they sit en banc, it does affect the composition of three-judge panels and can affect the rate at which one might expect panels with a given balance. Accounting for the effect of senior judges is difficult, however, as different senior judges carry different caseloads.

Second, as noted above, there will be a great many more judicial vacancies over the next four years. At this point, we don’t know when and where these vacancies will appear. For what it’s worth, I expect that the rate at which judges retire or take senior status will be affected by the caliber and qualifications of Trump’s initial judicial nominees. That is, sitting judges will feel more comfortable taking senior status and creating new vacancies if they feel confident that they will be replaced by qualified nominees. This may be particularly true for Republican appointees on the bench, insofar as we assume that judges prefer to be replaced by a president of the same party that appointed  them, but I expect the qualifications of Trump’s nominees will influence the decisions of Democratic appointees as well.

Finally, Trump’s influence on the courts could be magnified if Congress decides to expand the size of the federal judiciary. There are some courts with tremendous backlogs that could use more judges, and others (such as the D.C. Circuit) that Republicans would like to “pack” (or, if your prefer, “unpack”) to offset the effects of Obama’s appointments and Sen. Harry Reid’s decision to invoke the nuclear option to facilitate nominations. There is a long history of partisan majorities seeking to create judicial positions for presidents of the same party to fill, so don’t be surprised if Republicans start talking about doing it, too. Indeed, such conversations have already begun.

(For what it’s worth: I think judicial seats should be added to those courts with a genuine need, but judicial seats should not be created simply for the purpose of altering any given court’s balance. In other words, I see no reason to add seats to the D.C. Circuit. In addition, I would stagger the creation of these seats, spreading them out over several years — e.g. X in year one, Y in year two, etc. — so that such legislation does not create a partisan windfall.)