Timeline Narrows for Trump to Fill Judge Seats Before Midterms

A spate of judicial vacancies gives President Donald Trump a handful of new seats to try to fill as the window for Senate confirmations narrows before midterm elections.

Two trial court judges appointed by Barack Obama recently announced plans to take senior status in coming months, and a George W. Bush appointee to the US District Court for the Western District of Missouri said he would do the same next May.

Trump has also nominated two trial court judges appointed during his first term for appeals court seats, which will create vacancies on the North Dakota and Colorado district courts.

With the possibility of the GOP losing its 53-47 Senate majority looming, conservatives may be anxious to fill as many vacancies as possible before November balloting. Democrats would likely block most—if not all—nominees if control of the Senate officially flips next January with the start of a new Congress.

Republicans are “not going to want to leave anything on the table” before the outcome of the election is known, said JP Collins, an associate professor at George Washington University Law.

Vacancies Down

Even with the latest openings, which come with a number of vacancies already out there for Trump, the vacancy rate is the lowest it’s been at this point under any president since at least Jimmy Carter, said Thomas Jipping, a senior legal fellow at Advancing American Freedom and a former Senate Judiciary Committee chief counsel.

“The process can run as efficiently as it wants, and it’s running efficiently now, but you can’t fill vacancies that don’t exist,” he said.

These vacancies also come during a dry spell for judicial retirements at the circuit level. Even as conservatives have called for judges considering stepping back to do so sooner rather than later, no circuit judges have announced plans to do so since the beginning of April.

The Senate has so far confirmed 38 of Trump’s judicial nominees in his second term, including six to circuit courts.

A tight Senate schedule due to its annual August recess and time spent away from Washington for campaigning means that Trump would likely need to announce any picks by early July to ensure sufficient time for confirmation before the November midterms, Collins said.

“In about two more weeks, we’ll probably know the universe of folks who can be replaced before the midterms,” Collins said.

Red State-Blue State

On the surface, the easiest district court seats for Trump to fill are from red states, which are those represented by two Republicans in the Senate. That’s because Senate custom via the so-called blue slip dictates that both home-state senators sign off on any nominee.

Openings created by District of North Dakota Judge Dan Traynor’s elevation to the US Court of Appeals for the Eighth Circuit and the retirement of Judge David Gregory Kays of the Western District of Missouri are more likely to be filled, as both states have two Republican senators.

In addition, Texas has three openings excluding those with nominees currently pending, while district courts in Alaska, Louisiana, Florida, Texas, Oklahoma, Ohio, and Alabama also have seats to fill.

Nearly all of Trump’s trial court selections so far have been in red states. Blue states, those represented by two Democratic senators, are another matter.

Seats freed up by retiring Obama appointees in California and Washington state may remain vacant. The district court vacancy that will be created in Colorado if Dan Domenico is confirmed to the Tenth Circuit could go unaddressed for the same reason.

The offices of the California, Washington, and Colorado senators didn’t immediately respond to requests for comment on whether they would be willing to work with the White House on judicial nominations.

Both Collins and Jipping said Democrats are unlikely to work with Trump on judicial picks.

New Vacancies

Central District of California Judge Josephine L. Staton, who was appointed by Obama in 2010, informed the White House in a May 14 letter of her plans to take senior status in September.

Judge Thomas Rice of the Eastern District of Washington will take senior status beginning in December, according to the Ninth Circuit’s website.

Though Kays won’t take senior status until next year, Trump can nominate a replacement to be considered by the Senate immediately and assume office when the retirement takes effect.