The next president is poised to inherit the fewest judicial vacancies in generations
Oct. 5, 2024, 2:00 PM GMT+5
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.