Judicial vacancies during Trump's first term
Trump Administration  Vice President Mike Pence Cabinet • Transition team |
| Domestic affairs: Abortion • Crime and justice • Energy and the environment • Federal courts • Firearms policy • First Amendment • Healthcare • Immigration • Infrastructure • LGBTQ rights • Marijuana • Puerto Rico • Veterans • Voting rights Economic affairs and regulations: Agriculture and food policy • Financial regulation • Jobs • Social Security • Trade Foreign affairs and national security: China • Cuba • Iran • Iran nuclear deal • Islamic State and terrorism • Israel and Palestine • Latin America • Military • NATO • North Korea • Russia • Syria • Syrian refugees • Technology, privacy, and cybersecurity |
| Polling indexes: Presidential approval • Direction of country |
At the start of his presidential term of office, President Donald Trump inherited a large number of vacancies in the federal judiciary. When Trump assumed office on January 20, 2017, of the 870 life-term Article III federal judgeships, he inherited 108 vacancies. As of March 1, 2017, there were 129 vacancies in the federal judiciary among federal courts tracked by Ballotpedia. According to the Administrative Office of U.S. Courts, as of March 1, 2017, an additional 12 judges have announced their intention to leave active judicial status before December 31, 2017.[1]
Ballotpedia monitors these and other federal judicial positions through our Federal Vacancy Warning System and our monthly federal vacancy count. We also keep track of federal magistrate judges and federal bankruptcy judges on a recurring basis.
For this analysis, Ballotpedia examined the state of the federal judiciary at the start of Trump's term and compared that data with his five immediate predecessors. We also explored the potential for judicial openings during Trump's first term of office.
| HIGHLIGHTS | |
The federal judiciary
At the outset, it's important to identify the types of judges we're talking about. By definition, a federal judge is a judge serving on any federal court. There is, however, considerable variation in the term length for these federal judges. Some federal judges are appointed for a life term, consistent with Article III of the United States Constitution, but there are other judges on Article III courts who serve a fixed term of office. Some judges serve on courts created under Article I of the Constitution. Some are local judges in Washington, D.C., who are still subject to presidential nomination and confirmation by the U.S. Senate.
Ballotpedia monitors these and other federal judicial positions through our Federal Vacancy Warning System and our monthly federal vacancy count. We also keep track of federal magistrate judges and federal bankruptcy judges on a recurring basis.
For the purposes of this analysis, however, we limited our scope to those judicial positions on Article III courts in which confirmed nominees serve a life term. There are 870 of these positions under current law. These include positions on the Supreme Court of the United States, the U.S. Court of International Trade, U.S. courts of appeal, and U.S. district courts. Regarding the district courts, we did not include four federal district judges who serve on U.S. territorial courts, as these district judges serve fixed terms of service.
Vacancies
Vacancies at the start of term
We wanted to compare the number of vacancies that Trump inherited at the start of his first presidential term with those of his five immediate predecessors. Of these, Trump was the only one who inherited a vacancy on the U.S. Supreme Court. In fact, you'd have to go back quite a long way before you found a president who inherited a Supreme Court vacancy. In January 1881, during the final months of the Hayes administration, President Hayes nominated Stanley Matthews to succeed Justice Noah Haynes Swayne on the Supreme Court. As it was so close to the inauguration of President James Garfield, the Senate took no action on Hayes' nomination; however, in March 1881, President Garfield also nominated Matthews to succeed Justice Swayne. The Senate confirmed Matthews by a vote of 24-23, the smallest margin of any successful Supreme Court nomination in history.
On January 31, 2017, President Trump announced Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit as his nominee to the U.S. Supreme Court.
In addition to the vacancy on the Supreme Court, Trump inherited two vacancies on the U.S. Court of International Trade.
So how does Trump compare with his predecessors on vacancies in the federal circuit and district courts? As the data below show, Trump has a substantial number of vacancies on these courts to fill. Not since President Bill Clinton has a president had the opportunity to fill so many vacancies in the federal courts at the start of his first term. Trump's 108 inherited vacancies represent roughly one in every eight life-term judicial positions (12.41%).
Why did President Clinton have so many? On December 1, 1990, the Judicial Improvements Act of 1990 was signed into law by President George H.W. Bush. The act created 85 new federal judicial positions, but faced with an opposition Congress, the first Iraq War in 1991, and a failed re-election bid in 1992, President Bush never got to fill many of these new appointments.[2][3]
We broke down this data by circuit court and district court below to compare percentages across those courts. The data show Trump had the third-highest percentage of circuit court vacancies and the second-highest percentage of district court vacancies among recent incoming administrations.
Vacancies throughout a term
We were also interested in knowing how many vacancies have occurred throughout a president's term of office. Vacancies occur for a number of reasons. Some judges choose to retire from judicial service entirely without taking senior status, and some judges resign prior to retirement. Others are elevated to a different federal judicial position, which creates a vacancy in the court on which that judge served previously. Some judicial vacancies are created when new positions are designated by statute. Some judges have been impeached and removed from judicial service. Sometimes judges die during the course of their active judicial service.
The most common reason a vacancy is created is when a judge elects to take senior status. When a judge takes senior status—which is a strictly voluntary decision, as a judge cannot be compelled to do so—this creates a vacancy that is filled via a presidential nomination and Senate confirmation. Under the Rule of 80, which is governed by provisions of 28 U.S.C. § 371, beginning at age 65, a judge may retire at his or her current salary or take senior status after performing 15 years of active service as an Article III federal judge.[4] As a judge's age increases until 70 years old, the number of years of service decreases, so long as the age and years of service added together equals 80.[5]Federal judges are eligible for senior status at the following combined ages and years of service:[4]
We first wanted to get a sense of the aggregate data on just how many vacancies occur within a presidential term of service. We broke these numbers down by year and by court type, looking at district courts (DC), circuit courts (CC), and the two other courts under examination here: the Supreme Court and the Court of International Trade (Other). We noted that for every president who served two terms of office, more vacancies occurred during the president's first term than during the president's second term. This data is somewhat misleading for President Reagan, who signed the Bankruptcy Amendments and Federal Judgeship Act of 1984 in July of that year, which was during the final year of his first term. That legislation created 24 new circuit judge positions and 61 new district judge positions.[6] That said, the trend is unmistakable: based on recent history, we would predict that more vacancies will occur in Trump's first term than in a potential second term.
We next analyzed the data to see the number of vacancies that have occurred in a president's term of office by type on both circuit and district courts. For ease, we have categorized vacancies into one of three types: vacancies created by a judge who elects to take senior status, vacancies resulting from a new judicial position created by statute, and a catch-all category (Term) for all other types of judicial vacancies however they may materialize (e.g., resignation, impeachment, or death). We did this to see if a significantly large number of judges retired during a change in party control over the White House. The data below showed that when a change of party control of the presidency occurred, every first-term president except for Bill Clinton saw the highest number of circuit judges electing to take senior status in the first year of the first term (Reagan I, G.W. Bush I, Obama I). This first-year trend also held true for district judges electing to take senior status during both George W. Bush's and Barack Obama's first term. The conditional expectation then is, if recent trends hold, we can expect that perhaps more judges will elect to take senior status fairly early in Trump's administration. As we noted earlier, 12 judges have announced their decision to take senior status before December 31, 2017; more could be forthcoming.
Future vacancies in Trump's first termFinally, we wanted to find out what possible vacancies might occur throughout Trump's first term by examining the number of current judges who are eligible for senior status on their respective courts. Senior judges are Article III judges who, having met eligibility through age and service requirements, continue to serve on federal courts while hearing a reduced number of cases. According to the Administrative Office of U.S. Courts, senior judges "typically handle about 15 percent of the federal courts' workload annually."[5] In his 2016 annual report on the federal judiciary, Chief Justice John G. Roberts noted that senior judges "are eligible for retirement with full pay but still continue to work—most in a part-time capacity, but many full-time—without additional compensation."[7] Again, when a judge elects to take senior status—which is a strictly voluntary decision, as a judge cannot be compelled to do so—this creates a vacancy that is filled via a presidential nomination and Senate confirmation. We examined the data to see the number of Article III judges currently in active service that either meet or will meet eligibility for senior status during Trump's first term. Again, judges must choose to take senior status voluntarily, but these numbers provide a picture of the relative aging of the federal judiciary as Trump's first term unfolds. By our count, as many as 438 current judges are or will be eligible for senior status during Trump's first term; this number represents more than half (50.3%) of the 870 life-term Article III judicial positions under current law. In addition to the 108 current Article III vacancies that Trump will inherit, another 172 judges will be eligible to take senior status by January 20, 2017, and an additional 47 judges will be eligible in the 2017 calendar year. Counting existing vacancies and judges who could possibly take senior status, there could be as many as 438 vacancies by December 31, 2020.[8] Certainly not every judge who is eligible to take senior status will choose to do so, but of the 870 eligible Article III positions we've reviewed here, the fact that 108 are vacant and another 219 are filled by judges eligible to take a semi-retired position in 2017 suggests that a large percentage of the federal judiciary may be aging out in the near future. That said, most federal judges who will be eligible to take senior status in Trump's first term were appointed by Republican presidents. Most judges appointed to their first federal judicial position by President Barack Obama will not meet the years of service requirement to take senior status during Trump's first term. Recall that a judge must serve at least 10 years to take senior status, and even then the judge must be 70 years old in order to do so under the Rule of 80. Certainly, federal district court judges who were elevated by President Obama to a circuit court or, in Sonia Sotomayor's case, the Supreme Court, may be eligible given their combined years of judicial service, but most federal court judges first appointed by President Obama won't be eligible. We did, however, run the numbers to see how many of those judges who are or will be eligible for senior status were appointed by Democratic or Republican presidents. That data is broken down by circuit and district courts below. The data show that the majority of both circuit and district judges who could take senior status during the next four years were GOP nominees.
NominationsFirst-year nominationsWe wanted to get a sense of how active new presidents are in filling judicial vacancies during their first year in office. Trump has noted that filling the vacancy on the U.S. Supreme Court is a priority, but what does the data show about judicial nominations by presidents in their first year? With the exception of President George W. Bush, most recent presidents have made fewer nominations in the first year of their first term than in the first year of their second term. Presidents Reagan, Clinton, and Obama each made fewer nominations in the first year of their first term than in the first year of their second term. President George H.W. Bush only served one term in office, but his first year produced the fewest nominations of all presidents in the first year. This may be because, for the period under scrutiny, President George H.W. Bush did not inherit a presidency in which a change of party affiliation occurred as both Reagan and Bush were Republican. Excluding George W. Bush, the average number of nominations made in the first year of a president's first term is 37.5. Most of these nominations, in turn, have been successful. Again, excluding George W. Bush, most presidents in their first year in office during their first term have very few unsuccessful nominations.[9]
Senate rules and the 115th CongressIn 2013, during the 113th Congress, the Senate lowered the voting threshold to end debate on most presidential nominations. Cloture is used to end debate in the Senate and move proceedings to a vote in situations where the Senate does not agree by unanimous consent to end debate. Under the former rule, 60 senators were required to vote to invoke cloture in order to move to a final vote. Now only a simple majority of senators voting, rather than three-fifths of the full Senate, is required to invoke cloture and move most judicial nominations to a final confimation vote. The only exception to this rule is for those individuals nominated to the Supreme Court of the United States; for those nominations, 60 senators must still vote to invoke cloture.[10] Trump may benefit further because the Republican Party has a majority in the 115th Congress, which should accelerate the confirmation process. One place where a partisan majority in Congress may benefit Republicans is in filling judicial vacancies that were previously filled by Democratic presidents. All federal circuit courts have multi-state jurisdiction with the exception of the D.C. Circuit—and Washington, D.C., has no senators—so it is difficult for any one senator to block a nomination to a circuit court. However, custom and practice for presidential nominations to federal district courts involve the use of blue slips. A blue slip, simply, is a blue piece of paper given to the U.S. senators from the home state in which a district court judicial nomination has been received by the president. A senator returning the blue slip to the Senate Judiciary Committee chair indicates that the senator has no issue with the nominee, in which case the committee chair will often take steps to initiate committee proceedings on the nomination; a senator withholding his or her blue slip, however, indicates that the nominee does not have the senator's approval, in which case proceedings may be delayed indefinitely. Depending on the use of this policy by the current Senate Judiciary Committee chair, Chuck Grassley (R-Iowa), senators may have an opportunity to block, or not to block, unfavorable nominations made by Trump. Below is a table of current district court vacancies as the 115th Congress begins its work. If a state is not listed below, there is no current judicial vacancy in any federal district court in that state.
Consider, for example, vacancies in states such as Arizona, Kentucky, Louisiana, and Texas in which the vacancy was previously filled by a Democratic president. Today, those four states are represented by two Republican senators, and Trump won the 2016 statewide vote in each state. Also, depending on the blue slip policy employed by Sen. Grassley, nominees in states that were previously filled by a Democratic president, in which Trump lost in 2016, and in which the state is represented by one Republican and one Democratic senator could be affected. From 2003 to 2007, Republicans controlled the Senate and the blue slip policy was not enforced as strictly by then-Chair Orrin Hatch (R-Utah). As Jeffrey Toobin of The New Yorker wrote, "In the mid-aughts, when Orrin Hatch was chairman of the Judiciary Committee and Democrats began agitating against some of President George W. Bush’s nominees, Hatch started to ignore the blue-slip tradition. He would conduct hearings even if Democratic senators from the nominees’ home states had not sent in positive blue slips, and several of those nominees were ultimately confirmed." According to Toobin's report, Senator Hatch's successor as chairman, Patrick Leahy (D-Vt.), "recommitted himself to honoring blue slips. 'I assume no one will abuse the blue-slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate. ... As long as the blue-slip process is not being abused by home-state senators, then I will see no reason to change that tradition.'"[11] This led Leahy to adopt a policy where, as he noted in 2012, "I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home state Senators."[12] In the 114th Congress, Grassley adopted a similar policy and refused to move nominations forward if a home state senator failed to return a blue slip. But what if Sen. Grassley decides to utilize the blue slip policy in a different way or do away with the policy entirely? Nominees from states like Pennsylvania, Florida, and Ohio—states that have at least one Republican senator and in which Trump won in 2016—could be moved toward committee action through the return, rather than the withholding, of only one blue slip should Sen. Grassley opt to use the blue slip policy in this way. See alsoFootnotes
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
