WASHINGTON — The next president is on track to enter office with the fewest number of vacant federal judgeships to fill in more than three decades, the culmination of both parties diverging sharply on what types of judges they want to appoint and putting a high priority on confirming their preferred judges while in charge.
The election is just over a month away and early voters have already started casting ballots for either Republican Donald Trump or Democrat Kamala Harris. However, of the myriad of issues that have dominated this election cycle and motivated voters, appointing judges hasn’t received the same level of attention as in years past.
In 2016, a vacant Supreme Court seat placed the issue of judicial appointments front and center. In 2020, the death of Justice Ruth Bader Ginsburg and the last-minute confirmation of Justice Amy Coney Barrett again highlighted the role the president has in shaping the federal judiciary. But without the spotlight of a Supreme Court vacancy, the focus in the final weeks of the 2024 election has been aimed at the economy and other issues.
It’s not just the Supreme Court that lacks vacancies. Out of the 870 Article IIl judgeships authorized by Congress, only 43 seats, or 4.9 percent, are currently vacant. In late September, the Senate confirmed Joe Biden’s 213th judicial nominee before leaving town.
Assuming the Senate continues confirming pending nominees when it returns in November, the next president is poised to inherit the smallest number of judicial vacancies since when George H.W. Bush ascended to the Oval Office in 1989. There were 46 vacancies when Biden took office — which itself was a new low since 1989.
Senate Majority Leader Chuck Schumer said unequivocally that he will use the lame duck session to confirm more judges, as Republicans did in late 2020, regardless of who wins the presidency or control of the Senate.
“We are going to use the lame duck to confirm judges. And we’re going to do everything we can to get as many judges done as possible, trying to overcome the Republican obstruction,” Schumer told NBC News in a recent interview.
Confirming judges and justices takes 51 votes, a bar set by Democrats in 2013 for lower courts and extended by Republicans in 2017 to the Supreme Court. The Senate is slated to return on Nov. 12, and work for a total of five weeks until the new Congress is sworn in, unless it cancels breaks during Thanksgiving and Christmas.
Schumer has said he hopes to top Trump’s total of 234, although he isn’t guaranteeing it.
“We’ll do our best,” he said.
As of now, the number of vacancies might be low, however, Thomas Jipping, a senior legal fellow at The Heritage Foundation, said that he does expect an uptick in judicial openings once the new administration takes office — as judges who were waiting to see who would replace them opt to retire.
“On the date that he or she raises their hand, it might be a particular number, but in very short order, the number of vacancies available to be filled will increase, possibly quite significantly," said Jipping, who added that it’s a very “dynamic process” impacted by many factors including who wins the presidential election and the makeup of Congress.
'Set their sights on getting judges confirmed'
The amount of judicial vacancies at any one time is fluid and can rise or fall based on circumstances. Judges can take a form of partial retirement known as senior status once they’ve reached a threshold for years of service, they can completely retire, die in office or resign before they’re eligible for retirement. But regardless of those factors, it’s undeniable that the Trump and Biden administrations, combined with their congressional partners, have prioritized staffing the judiciary.
“I think the best simple explanation is simply a commitment to do it,” said Russell Wheeler, a senior fellow at The Brookings Institution who studies the judiciary. “Both McConnell and Schumer have set their sights on getting judges confirmed.”
When Trump took office in 2017, he inherited more than 100 vacancies — a high number thanks to Senate Republicans blocking confirmation of former President Barack Obama’s judicial nominees near the end of his term.
During his four years in office, Trump appointed 234 federal judges, the second-highest amount by a one-term president. The high number of vacancies at the start of his administration helped achieve that number, combined with the willingness of Senate Republicans to continue confirming Trump’s nominees after he had already lost the 2020 election but before Biden took office.
Biden, a former chairman of the Senate Judiciary Committee, entered office with less than half the amount of vacancies that Trump inherited. But over the last four years, he has been able to appoint a comparable number of judges, despite a more contentious confirmation process in the Senate, especially when it comes to powerful appeals court judges.
More than half of the active judges on the nation’s appeals courts were appointed by Trump and Biden, according to an analysis by liberal judicial advocacy group Demand Justice.
Zero of Biden’s nominees for the federal appeals courts have been confirmed without opposition and 90 percent of them have received more than 30 “No” votes in the Senate, according to Wheeler. Four percent of Trump’s appeals court nominees were confirmed with no opposition and only 76 percent of his nominees received more than 30 “No” votes.
“By any token, I think Biden’s judicial appointments are going to be one of the legacies of his administration,” Wheeler said. “The number [of judges] for a four-year term, but also the demographic diversity of his appointees both in terms of race and ethnicity but also prior position, the number of public defenders.”
Trump’s judicial legacy is already set, whether he returns to the White House or not. But another four-year term would give him the chance to shape an even greater portion of the judiciary and cement his place as the Republican president to have appointed the most judges since Ronald Reagan.
“If Trump is elected, the judiciary becomes the Trump judiciary,” said Maggie Jo Buchanan, managing director of Demand Justice. “A President Harris would build on the legacy of the current administration but would shape her own judiciary with her own nominees and priorities.”
But Harris’ freedom to shape the judiciary could be limited to the amount of vacancies that arise. Both Trump and Biden, but especially Trump, emphasized appointing younger judges who could potentially stay on the bench for decades.
“At some point, with all of these younger judges, particularly on the Court of Appeals, we’re going to just run out of people eligible to retire,” said John P. Collins Jr., an associate professor at The George Washington University Law School. “There is going to be something of a slowdown.”
The outcome of the election could also determine how many more vacancies the next president gets to fill. About 100 federal judges meet the requirements to retire or claim “senior status” with full pay but haven’t done so; the vast majority of them are Republican appointees. They may rethink that decision if Trump wins.
Of the 43 current vacancies, just 14 have nominees pending before the Senate, according to the Administrative Office of the U.S. Courts. The remaining 29 vacancies are for district courts, for which Senate Judiciary Chair Dick Durbin, D-Ill., is upholding a courtesy known as “blue slips” — that requires the sign-off of home state senators in order to advance those nominees. That means a slew of judgeships in red states represented by Republican senators could remain vacant.
Some Republicans believe that tradition will continue in the coming years, which could limit the amount of judicial vacancies the next president is able to fill.
“One thing that’s constant is blue slips,” said Sen. John Kennedy, R-La., who sits on the Judiciary Committee. “And my friend, Senator Durbin, threatened a number of times to get rid of the blue slip, but I knew he was bluffing because Congress has given up so much of its power to the executive branch. I think most Democrats and Republicans support the blue slip. And they weren’t about to get rid of it.”
