Filling the Dwindling Judicial Vacancies 

Congress’s August recess is here, which means it’s a good time to evaluate how judicial nominations have been going a half-year into the second Trump administration. I argued before the president had nominated anyone that this time the nominees should look similar to his first administration—albeit with a bit of an edge to them. The last six months have generally borne that out. At the same time the story of the second Trump administration is turning out to be the lack of judgeships to fill. This is unfortunate—and potentially tragic—when you consider both how Trump got these vacancies to begin with, and how uniquely well positioned the current Senate is to confirm conservative nominees.  

There has never been a Senate that’s better positioned to confirm conservative judges, but not since the first Bush administration have there been so few seats to fill.  

Trump Judges: The Numbers 

So far, the Senate has confirmed two circuit judges and three district judges, and it is still considering two more circuit nominees and seven more district nominees. While that may seem slow, that is because the breakneck speed of the Trump-McConnell judges’ train at full steam colors the memory of how the outset of an administration looks. Compare the last four administrations’ records at the first August recess: 

From this we see that the current administration’s confirmation numbers are broadly in line with other administrations, while his nomination numbers are lower than anyone’s but Obama’s. This is partly because there are so few vacancies to fill relative to these other administrations, but it also probably reflects a process that differs from the streamlined approach of the last two administrations. Ironically this reflects Trump’s reported personal interest in judges, because it will necessarily take longer to appoint nominees when the president needs to talk with them if only because of the demands on his time. 

As to the lack of vacancies, it’s significant. The Administrative Office of U.S. Courts reports a mere fifty-eight current or future judicial vacancies. This is only up five from the fifty-three available at the start of the administration. A look at the historical number at the start of presidential terms going back as far as records are available shows how unusually low these numbers are.  

You need to go back to the Reagan and Bush administrations—in the early days of the judicial wars—to see fewer vacancies. This is very likely to have something to do with the pace of nominations.  

Trump Judges: The Nominees 

But what about the nominees? After the president’s noisy falling out with the Federalist Society, have the falangist judges finally arrived? No, they haven’t. The current crop of Trump judges looks an awful lot like the last batch on paper, if in possession of a more political edge.  

If you look at the fifteen Trump nominees whose full information is publicly available, they have certain things in common. For one thing, they’re young: the average age is forty-four—a number that drops closer to forty-one, which is the median age, if you remove the two sexagenarians. The mode birth year seems to be 1987. 

As in the first administration, the nominees tend to have clerked at the circuit or higher (80 percent), with the most common circuit judges being Brett Kavanaugh and Raymond Gruender. They are almost all members of the Federalist Society (87 percent). Like last time they come from a variety of schools (only one went to Yale and only two went to Harvard), where they excelled and then mostly served time in “biglaw.” As before, most of Trump’s circuit nominees clerked at the Supreme Court.  

The real difference is that staggeringly, all of Trump’s picks have experience in what could be called Republican politics. Whether it’s campaign work, committee service, state or federal political appointments, or even elected office, they have all spent time in the political fight.  

This should not come as a surprise. As I suggested in March, “Nominees should still be good, of course: textualist-originalists who did well in law school, clerked for prestigious conservative judges, and have impressive careers are what’s best for the judiciary. But if Trump wants a tie to go to conservatism and not credentialism, it can.” That seems to be what’s happening. Last time nearly half of Trump’s circuit nominees were law professors; this time all of them have been in the political trenches. 

Of course there’s nothing wrong with this: many of the best pre-Trump judges have or had political backgrounds.  

In other words, media-driven drama about the Federalist Society aside, Trump is still picking from the same pool of talented conservative lawyers; he’s just controlling for a slightly different set of skills and interests when he does so. And it makes sense that he would want to test out an effective proxy to fill the bench in the mode of Edith Jones, Jerry Smith, and Diarmuid O’Scannlain.  

The Vacancy Field 

While Trump has basically kept pace on nominations, he will soon run out of seats to fill. Indeed, half the circuit seats available to Trump came from Democratic missteps exploited by Senate Republicans.  

Of the six circuit vacancies Trump has had to fill, he inherited three (First, Third, and Sixth Circuits). Those seats were held open as part of a “lame-duck” deal with Sen. Chuck Schumer whereby Republicans wouldn’t make procedural objections to the district-court nominees (whom McConnell didn’t have the votes to stop anyway) if Schumer agreed not to sneak through votes on the then-four circuit nominees who had sufficient opposition to fail.  

The broader context here is interesting. The Senate considered ten Biden circuit nominees in 2024, confirming only six of them. Of those six, three of them (Judges Nicole Berner, Joshua Kolar, and Seth Aframe) were filling vacancies that were announced in 2021 or 2022, showing just how long it can take to fill vacancies even with strong Democratic party discipline.  

Of the circuit vacancies announced in 2024, two were filled (the seats vacated by Judges Charles Wilson and Ilana Rovner) while two were not (those of Judges James Wynn and Jane Stranch). In fact, Mitch McConnell’s drumbeat of opposition to Judge Nancy Maldonado (replacing Rovner), garnered her bipartisan opposition that would have sunk her nomination but for poor Republican attendance. 

When you look at the list of judges whose replacements were considered in 2024, you see further interesting patterns. 

*Kanne’s seat opened because he passed away. 

All the judges who failed to be replaced announced their retirements in Biden’s last two years. Half of them retired about as soon as they could (Kayatta, Greenaway), but the other half (Wynn and Stranch) sat on their announcements for almost two years. Stranch was supposed to be replaced by her first law clerk (Karla Campbell), so one can speculate that she held out for a deal. It was a similar situation with Judge Gibbons—also in Tennessee—who waited thirty-two months into the Biden administration to announce her retirement. She was replaced by her law clerk, Kevin Ritz, who—as a white, male prosecutor—did not fit the Biden judicial mold, thus strongly implying a deal. While holding out got Gibbons what she wanted, Ritz—like Maldonado—had bipartisan opposition and very nearly failed, in which case the seat would have remained vacant for Trump. Gibbons, it seems, gambled and narrowly won, while Stranch gambled and lost. 

Judge Kanne also gambled and lost, although in a different way. He could have gone senior at any time in the first Trump term—indeed even during most of George W. Bush’s term—but he refused. Kanne, then, joined the ranks of Judge Steven Reinhardt and Justice Ruth Bader Ginsburg to learn that Father Time remains undefeated. 

Of course even the best-laid plans can go awry. Judge Greenaway, for example, gave the White House ample runway to replace him, announcing retirement over a year before he was eligible. Greenaway could have actually been replaced had Biden swapped out his doomed, radical successor, Adeel Mangi, for someone more palatable to vulnerable Democrats. Biden didn’t do that and now Emil Bove has retaken the circuit seat that was once occupied by Judge Sam Alito. 

Fifty-Three Votes  

The Greenaway-Mangi-Bove example shows why the current moment is both important and fleeting. Mangi was probably the most radical ideologue Biden put forward—as can be seen by his remarkable letter announcing his withdrawal—and was therefore not palatable in a 51–49 Senate. While Mangi’s Democratic opposition was more considerable than is generally known, it’s possible that Schumer could have gotten the confirmation done in the lame duck if he had more votes in his column.  

At the same time it’s fair to say that Emil Bove has been the most controversial of Trump’s picks. This controversy is overstated—Bove looks more like “prosecutor judges” Paul Matey, John Cronan, and Patrick Bumatay than the portrait of Roy Cohn painted by Democrats. Regardless, the controversy was there, and Leader John Thune (SD) still got him through, 50–49. With 53 votes, Thune can afford to lose Sens. Susan Collins (ME) and Lisa Murkowski (AK) with votes to spare.  

This is exceedingly rare. There historically is not unified Republican government very often. In the last 40 Congresses only around nine have had it. The 107th Congress went back and forth, but add it anyway and you get unified Republican government 25 percent of the time since World War II. Furthermore, when it did exist, the Republican Senate majority was never as strong on judges as it is today. 

For example, while there were more Republicans in the 109th Congress, filibuster abuse was still rampant, so the actual number needed to confirm someone was 60. Similarly, in the 98th Congress, the 55 Republicans included liberal majority-makers like Dick Lugar (IN), Lowell Weicker (CT), John Chaffee (RI), Bob Packwood (OR), Arlen Specter (PA), John Warner (VA), Robert Stafford (VT), and John Heinz (PA), none of whom could be relied on to consistently support judicial conservatives. The 116th Congress had its own challenges beyond Collins and Murkowski, with moderate establishmentarians like Mitt Romney (UT), Lamar Alexander (TN), Rob Portman (OH), and Richard Burr (NC), and vulnerable incumbents like Martha McSally (AZ), Cory Gardner (CO), and Joni Ernst (IA). Leader McConnell’s cunning got nominees like Amy Barrett through, but it was tough sledding.  

Today it’s entirely different. If you put aside Collins and Murkowski, the only Republican senator to have voted against a Republican judicial nominee on the floor seems to be Sen. John Kennedy (LA). Three other current Republican senators have opposed Trump cabinet nominees—Sens. Mitch McConnell (KY), Rand Paul (KY), and Ted Budd (NC)—none of whom has ever opposed a Republican judicial nominee. Retiring Sen. Thom Tillis (NC) actually stopped a Trump U.S. Attorney nominee, but Tillis, too, has never voted against a Republican judge. In other words, in the current Congress the majority maker for a judicial nominee is Mitch McConnell—the man whose motto in the 116th Congress was “leave no vacancy behind.”  

There has literally never been a Senate better positioned to confirm the most conservative judicial nominees available. One would need to go back to the Harding Administration and the 67th Congress even to make the argument.  

The “Lame Duck” 

It would be a mistake, though, to assume that this historically strong Senate will be confirming judges for another seventeen months, because the odds of confirming controversial judges following the November 2026 elections—during the “lame duck” period—are vanishingly low. 

It’s not generally understood how hard it is to compel retiring or defeated members to return during the lame duck to vote on nominees. That difficulty was a significant contributing factor in Schumer’s cutting the circuit deal that he did in December 2024. 

In terms of the 2026 lame duck, Democrats have four retirements to Republicans’ two, while Republicans are defending twenty-two seats to Democrats’ thirteen. Furthermore while only one Democrat is running for governor (Michael Bennet), two Republicans are doing the same (Tommy Tuberville and Marsha Blackburn).  

As we saw in 2024 with now-Governor Mike Braun in Indiana, it will be next to impossible to get Tuberville or Blackburn back for votes in the likely events they win. The same goes for Tillis—McConnell may feel differently if it’s judges he’s voting on—and any of the other in-cycle Republicans who may still choose not to run or who may lose a primary or general election.  

In other words, regardless of election outcome, the odds of Thune being able to post a reliable majority in the lame duck—especially one that isn’t reliant on Murkowski and Collins—are small.  

Going Forward 

The clock is ticking because, even though Republicans are favored to hold the Senate, the composition of the 120th Congress will almost certainly be weaker from a judicial perspective as they are likely to lose a seat or two. And beyond that, historically, there’s only a 25 percent chance that Republicans will have unified government at all in 2029. Furthermore, regardless of the outcomes of the 2026 elections, the odds of confirming circuit judges during the “lame duck” period of November and December are miniscule.  

So the first question a retirement-eligible judge needs to ask is, “Do I like the 75 percent historical chance of having to wait until 2033 to perhaps be replaced by a Republican if I serve out the Trump term?”  

If that gamble isn’t worth it against the sure thing of Trump replacement, the question then becomes, “Do I want Mitch McConnell to be the deciding vote on my successor, or do I want it to be Lisa Murkowski?”  

Depending on the answer there, McConnell will be the deciding vote for fifteen more months. That’s the countdown for a retirement-eligible judge who wants to be replaced by a conservative. 

Image licensed via Adobe Stock.