Presidents seeking to shift policy through personnel changes may remove most high-level executive branch officials from office at their discretion. In contrast, federal district and court of appeals judges, like Supreme Court justices, have life tenure and decide for themselves when to leave office, creating vacancies that presidents can try to fill. Vacancies created by judges appointed by presidents of the other political party are key to shifting the ideological orientation of the bench. Replacing judges appointed by presidents’ same-party predecessors can also have an effect if the new judges differ in judicial outlook from those they replace.
In his second term, President Trump may have less leeway to change either the lower federal courts’ party-of-appointing-president balance or to replace Republican appointees with judges who are more conservative and show more loyalty to him. As reported in May 2024, Democratic-appointed district judges now constitute a solid majority of all full-time district judges. Not enough of them are likely to leave active status to ensure a Republican appointee majority by 2029. Almost all judges leave active status only when eligible to retire on salary, although most do not do so immediately upon eligibility. A few leave before eligibility, i.e., resign.
Republican appointees have a slight majority on the courts of appeals, a proportion Trump can increase to the degree that Democratic appointees create vacancies for him to fill. Few of the 29 Democratic appointees who will be eligible to retire by late 2028 are likely to do so, including the 14 currently eligible, nine of whom were eligible when President Biden took office. However, the number of Republican appointees who will decide to leave active status during Trump‘s second term, creating the chance to replace a middle-of-the-road Reagan or Bush institutionalist with a judge more to Trump‘s liking, remains uncertain. A clue may lie in the meager number of Republican appointees who decided to leave office after the 2024 election. Judges, including Republican appointees, may be reluctant to have Trump select their successors, given concerns about the types of nominees he has put forward and his public criticism of judges who have ruled against the administration.
Elections that change White House party control often see an uptick in judicial vacancies. Many are created by appointees of presidents of the incoming president’s party who deferred leaving because they want their replacements to be selected by a president of the same party as their appointer. This phenomenon, known as “strategic retirements,” has been more muted in the early days of Trump‘s second term than for recent predecessors who defeated candidates of the party controlling the White House. The data suggest that the president who will appoint one’s successor is a factor motivating retirement in the immediate aftermath of an election. It shows that in no instance did more opposite-party-appointed judges vacate office than did same-party appointees. For instance, after George W. Bush’s victory, 29 of the 36 district and circuit judges who left office or announced they would leave office were Republican appointees. The same gap shows up for every successor.
Few retirements after Trump‘s reelection indicate that judges tended to leave active status after the election of a president of the same party that appointed them. Fewer judges have created or announced vacancies after Trump‘s 2024 election than after any presidential election since George W. Bush, including Trump‘s first term. The difference is starkest for court of appeals judges. After Election Day 2024, just two Republican appointees announced vacancies, compared to seven circuit judges who decided to create vacancies in the nine months after the election during Trump‘s first term. After Biden‘s election, 15 Democratic appointees decided to create vacancies or announce future vacancies. Twenty-four Republican appointees are retirement-eligible, but only two have created vacancies for Trump‘s second term. This hesitancy is likely operating even more forcefully on Democratic appointees, none of whom created or announced post-election vacancies after the 2024 election.
Retirement-eligible district judges appointed by both parties have been more willing than their circuit counterparts to create vacancies for Trump‘s second term, but not by much. The figures are lower than those after the elections of all recent predecessors shown. Thirty-nine active status Republican-appointed district judges are currently retirement eligible, as are 49 Democratic appointees, but they are unlikely to leave in large numbers. The behavior of Trump and his administration may explain the greater hesitancy, especially for Republican-appointed circuit judges, to create vacancies. The critiques by some in the conservative establishment and some conservative editorial pages of Trump‘s court of appeals nominee may have made judges reluctant to open the door for more such nominations. Many Republican appointees, especially circuit judges, are members of and owe their nominations to the Federalist Society, which guided Trump 1.0’s judicial selection process but which he is now trashing. Judges have likely been repelled by Trump‘s labeling appointees of both parties who have ruled against him as “lunatics”; by Republican legislators’ efforts to impeach judges who have crossed Trump; by the physical threats to judges engendered by such attacks; and by the frivolous but still dangerous public relations gambit that the Justice Department filed in the guise of a judicial conduct complaint against a district judge who ruled against tactics of the administration’s immigrant removal campaign.
The comparatively low 2024-25 retirement rates may be ephemeral. A flood of vacancies may be just around the corner. Still, the low rate of Trump 2.0 retirements seems a clear exception to recent patterns, and administration attacks on judges have been serious enough that Chief Justice John Roberts has taken the rare step of rebuking them. At the least, the developments reported here bear watching.
Impacto en la administración
La administración Trump 2.0 ha enfrentado críticas por su enfoque en la justicia, lo que ha llevado a una serie de renuncias de jueces. A pesar de esto, el número de renuncias sigue siendo bajo, lo que sugiere que la administración ha encontrado formas de mantener a sus jueces en sus puestos. Sin embargo, la situación sigue siendo incierta y es probable que se produzcan cambios en el futuro.
