Incoming president likely to make more than 100 judicial appointments

The next president will appoint more than 100 federal judges to the bench, providing an opportunity to mold the federal judiciary towards his or her liking. 

As of Election Day, there were six vacancies on the high-profile federal circuit courts, and 61 district court vacancies waiting to be filled.

According to recent history, a new president on average has between 200 and 250 Article III judicial appointments during the course of four years in office.

During his first administration, former President Donald Trump appointed three Supreme Court justices, 54 circuit court judges and 174 district court jurists. The impact of his Supreme Court appointments was far-reaching, creating a solid conservative majority that overturned the Roe v. Wade abortion precedent in 2022.

President Biden has appointed one Supreme Court justice, Ketanji Brown Jackson, 44 circuit court and 166 district court judges.

But what is not clear is how many judicial vacancies Senate Majority Leader Charles E. Schumer, New York Democrat, will move to fill during the lame-duck session between Election Day and January.

“There’s certainly some forecasting to be done, but there are a number of factors that keep it hard to calculate precisely,” said Zack Ford, a spokesperson with Alliance for Justice.

Those factors also include how many current judges will consider retiring.

“I do think it’s easy to say that there will be considerably fewer vacancies than the past two administrations have started with, dating back to the numerous positions [Senator Mitch] McConnell held open by not processing [former President Barack] Obama’s nominees at the end his administration,” Mr. Ford said.

Mike Davis, president of the Article III Project, estimates that there could be 37 circuit court judges eligible for senior status and 80 district court appointments when the new president is sworn in on Inauguration Day.

A Republican staffer said at this point in the Trump administration, 218 Article III judges had been appointed.

“We confirmed a total of 234 Article III nominees during the entire Trump administration,” the staffer told The Washington Times. “To date under the Biden administration, we have confirmed 213 Article III judges.”

There are five pending circuit court nominees and 25 pending district court nominees that Mr. Biden has made, “with several unlikely to be confirmed before the end of the Congress,” the staffer noted.

Judicial appointments have become part of the election debate. In the 2016 presidential race, Mr. Trump was credited with winning over conservative voters by releasing a list of his intended judicial candidates.

Democratic lawmakers have targeted Mr. Trump’s Supreme Court appointments, arguing they are taking away women’s rights by having overturned Roe, the 1973 landmark ruling that gave women a national right to abortion.

In 2022, the conservative majority on the Supreme Court sent the issue of abortion back to the states to be decided by state legislatures. Some red states have moved to strictly curtail the procedure.

Democrats have argued there should be term limits imposed on the high court and more justices added to the high court by the next Democratic president.

Republicans have argued that packing the court is unpopular with voters.

Republican appointee Clarence Thomas is the oldest Supreme Court justice at age 74, followed by Justice Samuel A. Alito at 72. Justice Thomas is also the longest-serving of the current justices, having served on the bench for more than 32 years.

Republican judicial appointments tend to ascribe to originalism, based on the original meaning of the Constitution at the time of the founding, or textualism, based on strict interpretation of the text of a statute.

Meanwhile, Democratic appointees at times adopt a living view of the Constitution, or judicial pragmatism, where the law is interpreted based on society and the time.