by Jorge Gomez • 6 minutes
As Inauguration Day approaches, judicial experts predict that Trump has the potential to impact the federal courts more than any president in history.
“Trump will have about 35 vacancies to fill when he again takes office next month, one-third as many as he had in January 2017,” notes Thomas Jipping of the Heritage Foundation. “But if the average pace of judges leaving their appointed positions continues, however, Trump may, between his two terms, have the largest impact on the federal judiciary than almost any president in history.”
The number of vacancies is likely to jump much higher. “In very short order, the number of vacancies available to be filled will increase, possibly quite significantly,” added Jipping.
According to Reuters, there are more than 240 judges eligible to take senior status, a type of semi-retirement in which a judge may continue to hear cases, but their judicial seat is open and can be filled by the sitting president.
Even groups on the Left are acknowledging that Trump is likely to reshape the judiciary. “The most lasting impact of this GOP sweep will arguably be felt on the courts,” wrote the Huffington Post. “For at least two of the next four years, Trump can appoint dozens of conservatives to lifetime federal judgeships all over the country.”
President Biden and members of his party, however, are trying to downplay what Trump could do over the next four years, pointing to the number of judges confirmed during Biden’s term.
The U.S. Senate recently confirmed Biden’s 235th judge to the federal bench. That figure surpasses President Trump’s first term record, but only by one judge. The first Trump administration saw 234 judges confirmed. Biden’s appointments include:
By comparison, Trump has already made more of an impact on the top two levels of the judiciary, with three Supreme Court appointments and more than 50 judges confirmed to the appeals courts. He also appointed more than 170 to the district courts, which isn’t far behind Biden.
Biden Vetoes Bill That Would Have Created Dozens of Federal Judgeships
Trump could have had at least a dozen more vacancies to fill as part of the JUDGES Act, a bipartisan bill that would have created 66 new district judgeships between 2025 and 2035. President Biden, however, vetoed the bill.
Congressional leaders and scholars quickly called out Biden’s veto as a political ploy to prevent more vacancies going to the Trump administration.
“The Biden-Harris Administration has chosen to issue a veto threat and Democrats have whipped against this bill, standing in the way of progress, simply because of partisan politics,” House Speaker Mike Johnson said in a press statement. “This should not be a political issue—it should be about prioritizing the needs of the American people and ensuring the courts are able to deliver fair, impartial, and timely justice.”
“Issuing this veto is partisan politics at its worst,” said Sen. Todd Young of Indiana, who helped spearhead the bill.
“President Biden and his team don’t want to allow it to become law simply because a Republican administration would get to appoint some of the judges,” Sen. John Kennedy of Louisiana said. “I wish they’d put the country first.
“A veto would damage our courts, unfairly punish judges who are drowning in cases, and cost millions of people who are waiting for the courts to resolve their cases more money, uncertainty, and in some cases, their lives and liberty,” said Duke Law School professor Paul Grimm. “Our federal courts are our last defense against erosions of our Constitutional rights, not a political football. This is a veto our country can’t afford.”
Judicial leaders also raised concern that vetoing the bill would lead to more case backlogs and delays for litigants.
“The president’s veto will contribute to the pattern of growing caseloads and increasing backlogs that hurt litigants and weaken public confidence in our courts,” said Judge Robert J. Conrad, Director of the Administrative Office of the United States Courts. “It is regrettable that the Administration failed to support the federal Judiciary, and rejected this bipartisan, bicameral and interbranch agreement.”
Trump Administration Can Present Nominees for Appellate Court Vacancies on Day One
In November, Majority Leader Chuck Schumer struck a deal with Republicans not to confirm any of Biden’s remaining nominees to appeals courts. In exchange, the minority agreed to ease process to confirm Biden’s district court nominees.
That means that immediately upon taking office in January Trump should have a handful seats to fill on the federal courts of appeal.
But some judges who previously opted to retire are now saying they will remain on the bench. According to The Washington Post, at least three judges appointed by Democrat presidents have withdrawn their plans to retire. Congressional leaders and experts are calling this a partisan attempt to block President-elect Trump from appointing their successors.
“After careful consideration, I have decided to continue in active regular service,” Fourth Circuit Judge James Wynn Jr. wrote in a letter to President Joe Biden. “I apologize for any inconvenience I may have caused.”
Sen. Thom Tillis of North Carolina rebuked Wynn’s decision as “brazenly partisan,” saying it points to a bigger issue of some judges being “nothing more than politicians in robes.”
“Judge Wynn clearly takes issue with the fact that @realDonaldTrump was just elected President, and this decision is a slap in the face to the U.S. Senate, which came to a bipartisan agreement to hold off on confirming his replacement until the next Congress is sworn-in in January,” Tillis wrote on X.
Wynn is the third judge to rescind his retirement plan since Trump’s Nov. 5 election win. One district court judge in North Carolina and one in Ohio also reversed their plans to retire from judicial service.
“Once a judge makes a retirement decision, he should stick with it—or, at the very least, he shouldn’t undo it because his bet on who would be replacing him didn’t work out,” writes Ed Whelan at National Review.
“If it becomes acceptable for a judge to withdraw a decision to retire in the future, that judge can exert undue influence on the selection of his successor,” adds Whelan. “It’s a bad thing for judges to act in a brazenly partisan manner.”
The Biden administration had selected radical nominees for the appellate court vacancies that Trump is supposed to inherit. Some of them had a dismal and alarming record on religious freedom. Others espoused legal theories and views far outside the mainstream, generating significant controversy and opposition.
President-elect Trump will have an opportunity to appoint nominees with a stronger record for these seats.
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