Trump’s Power to Stack the Courts Hinges on Pool of Aging Judges

Roughly 22 Republican-appointed judges eligible for a form of semi-retirement provide President Donald Trump with the most likely pool of potential circuit seats to fill as he looks to build on his judicial legacy.

Most of them could’ve exited active service during Trump’s first term, so it’s uncertain whether they’ll choose to do so this time.

Filling the judiciary with younger and even more conservative jurists will require an older and more moderate generation of Republican-appointees to step aside since Trump returns with less than half of the judicial vacancies than he started with in 2017.

Trump made 54 lifetime appointments to the appellate courts, leaving a quarter of the 179 total seats filled with his appointees by the end of his first term.

There are at least 22 circuit judges appointed by Presidents George W. Bush, George H. W. Bush, and Ronald Reagan eligible for senior status, a form of semi-retirement. They include four each on the Fifth and Eighth Circuits, three on the Fourth Circuit, and at least one judge on every circuit except the First, Third, and Eleventh Circuits, according to an analysis by Bloomberg Law.

Senior status allows judges to vacate their seat and take a lighter caseload. To qualify, a judge needs to be at least 65, and their age plus years of judicial service must equal at least 80. The minimum number of years of service to qualify is 10.

Among those who’ve announced plans to step back since Trump’s inauguration two months ago include the Ninth Circuit’s Sandra Segal Ikuta, 70, and the Seventh Circuit’s chief judge, Diane Sykes, 67. Both were appointed by George W. Bush.

Those remaining include the Ninth Circuit’s Milan Smith, 82, who once said that he had no plans to retire and wished to “die with my boots on.”

They also include the DC Circuit’s Karen Henderson, 80, who’s been a federal judge since her 1986 appointment to South Carolina’s US trial court and later elevation to the appellate bench in 1990; and the Ninth Circuit’s Consuelo Callahan, 74, who’s been active since her 2003 appointment by George W. Bush and was once speculated to be on his shortlist to replace Justice Sandra Day O’Connor.

Their reasons for not stepping back typically aren’t public, but they can range from enjoyment of the job to the prestige of serving on a bench one step below the US Supreme Court.

Trump allies say that Republican-appointed judges mulling retirement have nothing to worry about.

“Originalist and textualist judges who are eligible and contemplating retirement—but who are concerned about the quality of their potential successors—should put that fear behind them,” said Robert Luther III, a former Trump White House lawyer who prepared judicial nominees for Senate hearings.

“Nobody is going to be disappointed with these nominees—except for Democrats,” he said.

Ideology Influence

Studies show one factor that can influence a judge’s decision to step down is whether a like-minded president is in power to appoint a replacement. Democratic-appointed judges have been more likely to retire under Democratic presidents and Republican-tapped judges under Republicans.

“I have just known enough judges in my life that of course they think about things like that,” said Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former California federal judge. “They don’t lead with that, but it certainly enters into it.”

Ideology and not just appointing party can be an important factor in whether a judge retires under a president, according to recent research.

Trump’s appointees have statistically been found to be more conservative than the judges other recent Republican presidents have added to the courts.

Among the Fifth Circuit’s conservative supermajority, an older generation of moderate George W. Bush appointees whom court watchers have called “institutionalist judges” have at times steered the court away from taking up more controversial legal stances and reviewing past precedent.

Ideological distance between such moderate judges and Trump may explain why several have yet to allow him to appoint their successor, said Maya Sen, a Harvard professor who has studied ideology’s impact on strategic judicial retirements.

On the other hand, the Seventh Circuit’s Sykes, who was once on Trump’s Supreme Court shortlist to replace Justice Antonin Scalia and described herself “loosely an originalist-textualist,” became retirement eligible during the Biden administration but announced senior status plans on March 19.

Sen said she sees the remaining retirement-eligible Republican appointees taking a “wait and see” approach in the coming months “to see how the Trump second administration is going to shake out.”

The administration’s open battle against the judiciary isn’t likely to induce a rush of retirements, she said.

Trump and his allies have called to impeach judges appointed by both parties who’ve ruled against the administration’s early actions. Some lower court judges and Chief Justice John Roberts have pushed back on those calls.

“Attacks on the judiciary tend to be poorly received by the judiciary,” Sen said.

Personal Decision

Ideology won’t be the only consideration for judges considering their future plans.

The prospect of being ineligible to participate in en banc deliberations—hearings involving full court panels—as senior judges might convince some to remain active.

It’s not unusual for judges to stick around past eligibility age, especially those who aren’t faced with health concerns or other external factors “that might force a decision sooner rather than later,” said John P. Collins, a George Washington University law professor whose researches judicial nominations.

Four circuit judges announced retirement plans at this point in Trump’s first term compared to two this time.

Even if Trump appoints fewer circuit judges, they will still have an impact.

“You’re going to get more conservative judges—you’re going to get younger judges who are then going to be on the bench for longer,” said Jack Deschler, a doctoral candidate at Harvard Kennedy School who studies judicial politics, ideology, and retirements.