President-elect Donald Trump can substantively recast the direction of the federal courts from the earliest days of his administration, after two years of divided government have left vacancies open across the federal bench.
Though the vacancy on the U.S. Supreme Court occasioned by the death of Justice Antonin Scalia is the most prominent of these vacancies, there are 104 total vacancies and 38 judicial emergencies in the federal courts as of this writing.
A judicial emergency, as defined by the Judicial Conference of the United States, occurs when action items on a court’s docket exceed 6/700 per judge, or where a vacancy has lasted longer than 18 months and there are between 430-600 action items per judge. Some district court judges around the country are currently contending with dockets 1,200 filings long.
Of the 104 current vacancies, one is on the Supreme Court, 13 are on the federal appeals courts, 82 are in U.S. district courts, and eight are in courts of special jurisdiction like the U.S. Court of Federal Claims.
Trump will make at least one appointment to the Supreme Court, which will likely preserve the five-four majority which (with major caveats) tends to favor the conservative bloc. Over the next four years, he may make additional appointments, as three justices are over the age of 78—Justice Stephen Breyer is 78, Justice Anthony Kennedy is 80, and Justice Ruth Bader Ginsburg is 83.
There are currently rumors afoot suggesting Kennedy may be the next to go, as he has only hired one law clerk for the coming term (clerks are typically hired several years in advance of their service on the court.) He also did not teach abroad this summer, as is usually his custom. For the moment, the court’s press officers are running interference and swatting down rumors.
While he waits on further retirements for the high court, he can begin filling vacancies that exist in the appeals and district courts.
Professor Carl Tobias of the University of Richmond School of Law, an expert in federal judicial selection, says his most meaningful impact in the early going could be on the 9th U.S. Circuit Court of Appeals, the largest federal appeals court in the country.
By year’s end, there will be four vacancies on the court, which consistently has one of the highest Supreme Court reversal rates (Roy Hofer provides further context here.) Two vacancies were precipitated by the departure of Democrat appointees.
“Four out of 29 is not a big percentage, but it’s a fairly significant number on that court,” he said. “So if you look at it quantitatively that might be the place.”
Tobias further explained the situation is especially dire in Texas, where there are currently 11 vacancies across all four of the state’s federal district courts.
However, he explains a Supreme Court confirmation battle is likely to stymie progress on dozens of other vacancies. He anticipates Trump will not begin making appointments to the federal bench until the vacancy on the Supreme Court is filled.
“My guess is you’re not likely to see a whole lot of nominees, or even any nominees, until the Supreme Court confirmation is over,” he said. That process, he added, might not conclude until June.
Tobias noted this follows a trend that held even when Democrats controlled the White House and the Senate during the last two Supreme Court confirmations. “The rest of the process sort of came to a halt,” he said. “The circuit and district nominees didn’t have very many hearings at all.”
The slow pace of judicial confirmations, he explained, is attributable to many factors, including FBI background checks, logistical and scheduling concerns constraining the Senate Committee on the Judiciary, and the American Bar Association’s vetting process. This is his biggest concern.
“By the time the Supreme Court confirmation process is through, there may be 120 or 125 vacancies,” he said. “It will be difficult to get that number down because of the mechanics of the process and because there’s a limit to how quickly the process can go.”