Bush-Era Judges’ Retirement Decisions Hands Trump New Seats

A trio of federal appellate judges’ retirement announcements has given President Donald Trump new circuit court seats to fill, after the pipeline seemed to be drying up. And more retirements could be on the way.

Within a week, Chief Judges Jeffrey Sutton of the Sixth Circuit and Debra Ann Livingston of the Second Circuit, as well as Judge Timothy Tymkovich of the Tenth Circuit, all announced their plans to step back from active service in the future.

“I’ll be 70 in a few months and everyone I know is retired,” Tymkovich said in an email about his decision to take senior status, a form of semi-retirement for federal judges.

Sutton declined to comment and Livingston didn’t return a request for comment.

Trump inherited four circuit court vacancies when his second term began in 2025. Since then, six more judges—all George W. Bush appointees—have said they’ll take senior status, opening their seats for the president to fill.

Eleven other George W. Bush appointees on the federal appeals courts are eligible to take senior status, in addition to nine Ronald Reagan and George H.W. Bush nominees who haven’t retired despite being able to years ago, according to a Bloomberg Law review. Federal judges generally must be 65 and have served for at least 15 years in order to go senior.

Conservative attorneys who track federal judicial nominations have made public pleas for federal judges thinking of retirement to do so sooner than later.

“I think it’s inevitable and acceptable to prefer that one’s seat be filled by someone who’s ideologically compatible,” said one of those lawyers, Ed Whelan, a fellow with the conservative Ethics and Public Policy Center. “This would be pure speculation on my part, but insofar as they’re thinking about wanting to get someone good in their seats, from their perspective, waiting much longer would not be smart.”

Part of the pressure to retire is driven by the upcoming midterm elections. If Republicans were to lose the Senate in November, it’ll make it harder for the Trump White House to get their picks on the bench.

Rob Luther, who worked in the first Trump White House on judicial picks, has also publicly called for eligible judges to retire. He said he’s not surprised at the timing of the retirement announcements, given the upcoming midterms.

“As the time has winnowed down, I think more judges are thinking about their legacies and about the opportunity President Trump has with Dave Warrington and his team to keep making excellent picks,” Luther said, referring to the White House counsel. “The judges wouldn’t be leaving if they weren’t happy with the kinds of people who’ve been nominated.”

Trump Picks

Under Senate Republican leadership, Trump has appointed six judges this term to the federal appeals courts, and has nominated another.

Trump’s decision to appoint his former personal attorney and top Justice Department official Emil Bove raised eyebrows, as he was facing whistleblower complaints for suggesting that officials defy court orders over the deportations of Venezuelan nationals. Bove has denied those claims.

But lawyers said that Trump’s picks generally have been respected conservative attorneys, which may have eased any potential concerns among Republican-appointed judges considering retirement.

As to why so many of the Bush appointees have gone senior, Whelan pointed to their age. “The Bush 43 appointees are just a natural cohort, demographically,” he said.

Bush-era appointees may have seen their older colleagues not able to enjoy their time off the bench once they retire, or witnessed others who declined while still on the court, said Maya Sen, a professor at the Harvard Kennedy School who writes about federal judges.

“You want to be able to enjoy your retirement and you don’t have many years left to do it,” Sen said.

Senior judges have discretion over their caseloads, meaning they can hear as many cases as they did as an active judge. Tymkovich said he plans “to stay busy with my caseload and committee work, which is very gratifying and I hope in service to the Federal Judiciary.”

“I’ve been very fortunate to work on a collegial and productive Court with great colleagues and leadership,” he added.

There are also 16 federal appellate judges appointed by Democrats who are eligible to go senior. Sen said her research shows that those Democratic appointees are more likely to go senior while a Democrat is in the White House, cutting against the chances of them retiring soon.

Some research suggests there could be a strategic element to retirement decisions, with judges deciding to step back when a president of the same party that appointed them is in power, said Gbemende Johnson, a political science professor at the University of Georgia.

She said personal circumstances also play a role, as some Republican appointed judges who were also eligible for senior status during Trump’s first term haven’t yet done so. “It’s not uncommon to have federal judges who really enjoy the work and want to continue the work,” Johnson said.

In the meantime, conservative lawyers are preparing for the possibility of at least one more seat opening in the near future.

“I don’t think we’ve seen the last judge who will go senior in 2026 prior to the midterms,” Luther said.