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Article: March 2020: Appellate Practice Update

Business Litigation Reports

One Quarter of All Federal Appellate Judges Appointed by Trump; Few Vacancies Remain

 

For nearly every litigant, the federal court of appeals represents the last opportunity for relief, rendering the composition of the federal appellate courts an important data point to consider in planning legal strategy.  In his first three years in office, President Trump has moved swiftly in appointing—and the Senate has moved swiftly in confirming—appellate court judges.  Currently, only one judgeship on a federal court of appeals is vacant.  Judicial Vacancies, https://www.uscourts.gov/judges-judgeships/judicial-vacancies.   

In the past three years, nearly 200 new judges have been appointed to the federal judiciary, including two Supreme Court justices and 51 judges on the courts of appeals.  Judgeship Appointments by President, https://www.uscourts.gov/sites/default/files/apptsbypres.pdf.  At the close of 2019, President Trump had appointed one-quarter of all judges on the federal appellate courts.  

These appointments have flipped three courts of appeals from courts with a majority of Democratic-appointed active judges to a majority of Republican-appointed active judges.  Prior to the start of the Trump Administration, a majority of active judges on the Second Circuit, the Third Circuit, and the Eleventh Circuit had been appointed by Democratic administrations.  As the new decade begins, the Second Circuit now has seven active Republican-appointed judges, five of whom were appointed under the Trump Administration, compared to six active judges appointed during Democratic administrations.  On the Third Circuit, President Trump has appointed four of the fourteen active judges, bringing the total number of Republican-appointed judges to eight.  And five new judges have joined the Eleventh Circuit in the past three years, with one more recently confirmed by the Senate.  That will bring the total number of Republican-appointed active judges to seven, compared to only five Democratic-appointed Eleventh Circuit judges.  President Trump is expected to appoint one more judge to fill an anticipated vacancy on the Eleventh Circuit in 2020.  

Several other circuit courts have seen an increase in the number of Republican-appointed judges.  For instance, although the Ninth Circuit maintains a majority of active judges nominated by Democratic presidents, ten new judges have joined the Ninth Circuit in the past three years.  Thus,  thirteen of the twenty-nine active Ninth Circuit judges were appointed during a Republican administration.  The Fifth Circuit now has five Trump-appointed judges, with one additional vacancy remaining.  If the Senate confirms a Trump appointee for that vacancy, the Fifth Circuit will have twelve Republican-appointed judges out of seventeen active judges.  President Trump also has appointed six judges to the Sixth Circuit, setting the total number of Republican-appointed active judges on the court at eleven, compared to five appointed by Democratic administrations.

The appointment of 51 courts of appeals judges in the past three years already exceeds the total number of federal appellate court judges appointed during the eight years of the Obama Administration.  But, of course, these judges did not all replace judges appointed by Democratic administrations.  In fact, the majority of the new federal appellate judges replaced judges who also had been appointed by Republican administrations.   

The spate of appointments has changed the composition of the courts of appeals in another way—by lowering the average age of the active judges.  Because every court of appeals judge who takes “senior status” creates a vacancy for a new “active status” judge, the new appointees are generally much younger than the judges they have replaced.  Yet, although 51 circuit court judges have been confirmed in the past three years, that pace certainly will not continue because only one current vacancy remains.