Paucity of vacancies slows Trump’s effort to reshape courts

President Trump began his second term with a flurry of orders to change the federal government structure and policy. Federal district judges, almost 60% (see Figure 3, below) of whom are Democratic appointees, have stymied or slowed down those efforts, even as appellate courts, especially the Supreme Court, have, so far, been somewhat more accommodating.

President Biden’s 189 district court appointments (including the Court of International Trade) are a main reason for the dominance of Democratic appointees among district judges, and his 45 circuit judge appointments helped produce the current party-of-appointing-president parity on the courts of appeals.

In the one year since Inauguration Day 2025, Trump’s judicial appointments have produced minimal change in the judiciary that Biden left him. Moreover, the first year suggests it’s unlikely that Trump’s second term will produce strong Republican-appointee dominance on the lower federal courts.

That might seem counterintuitive, given that Trump’s 27 judicial appointments in the first year of his second term exceeded the 22 first-year appointments of his first term, a total that surpassed only those of Obama and George H.W. Bush—and hardly foretold Trump’s eventual four-year record of 54 appellate and 177 district court appointments. But confirmation numbers don’t tell the whole story.

Greater opposition

Although the confirmation process has been slightly faster so far in Trump’s second term, party divisions—as reflected in negative votes—have been sharper than in his first term. During Trump’s first term, seven of his 12 first-year appellate confirmations received 40 or more no votes; all six of his 2025 appointees did. None of the first 10 district court judges confirmed in Trump’s first term received 40 or more no votes, compared with 18 of 21 first-year district confirmations in his second term. (Confirmation-opposing votes have been on a steady increase over decades—see Figures 6 and 7 on the Initiative’s Courts and Congress Index).

So far, Republican senators have almost unanimously supported Trump’s nominees, and Democratic opposition does not appear to have derailed any of them (although the administration did not resubmit one district nominee, apparently to avoid “a ‘nasty confirmation fight’”). But if loyalty to Trump starts to fade, controversial nominees may be more vulnerable to Trump-resistant Republicans (two of whom—Alaska’s Lisa Murkowski and Maine’s Susan Collins—voted against one or both of the two most controversial circuit nominees). Furthermore, the Republicans’ slim 53-seat Senate majority may get slimmer after 2026’s midterms. Should Democrats win the majority, confirmations will sink to 2015-16 levels or below.

Fewer pending nominations

At the end of the first year of Trump’s second term, there were no pending appellate and six pending district nominees.

By contrast, Trump ended the first year of his first term with seven appellate and 44 district nominations pending, of which the Senate confirmed six and 39, respectively. Adding those future confirmations to the 12 appellate and 10 district confirmations in place, first-year activity accounted for a third of Trump’s total appellate appointments and a quarter of his district appointments in his first term. For whatever it’s worth, if Trump’s second term matched that pattern, it would produce, full term, only 18 court of appeals judges and 104 district judges.

Of course, more nominations are coming, but how many more? And how many will be to judgeships vacated by Democratic appointees?

Paucity of vacancies

Both Trump’s first term and the Biden administration shifted the party-of-appointing-president composition of judges in full-time status. Firm predictions about the remainder of Trump’s second term would be irresponsible, given the many possible permutations. But, as in my August 2025 post, several basic facts are likely to be controlling—chief among them the likely paucity of vacancies for Trump to fill, particularly those created by Democratic appointees.

Figure 1 shows the shift since 2017 in the proportion of full-time status circuit judges as to the party of the appointing president.

Trump inherited a court of appeals dominated by Democratic appointees and, in four years, created a Republican-appointee majority by appointing 54 judges, 19 of whom (35%) replaced Democratic appointees. Biden had a more modest impact: fewer judges—45—only nine of whom (20%) replaced Republican appointees.

Simply for illustration: Trump could restore the percentage of Republican appointees to January 2021’s 54% by replacing five Democratic appointees (i.e., increasing the current 92 Republican appointees to 97, assuming, simply for illustration, no vacancies). Five Democratic-appointee vacancies might seem plausible in that 30 Democratic appointees will be eligible to leave active status on salary by late 2028 (which is how almost all vacancies get created). But being eligible to leave and leaving are two different things; indeed, half of the 18 who are now eligible have been so for at least five years.

Eight Democratic appointees retired on salary during Trump’s first term—and that was before the phenomenon described in my August post and updated in Figure 2: Far fewer judges are creating vacancies following Trump’s reelection than did judges after the elections of every president since at least George W. Bush, including Trump in his first term. As to the courts of appeals, Figure 1 shows, for example, that after Trump’s 2016 election through Jan. 19, 2018, 15 Republican appointees (i.e., “same party”) and four Democratic appointees (i.e., “other party”) either announced their intention to leave active status or left active status without a previous announcement. In the comparable period in and after 2024, three Republican and no Democratic appointees did so.

We can speculate on the reasons, but Trump’s constant attacks on judges may have made some judges reluctant to have him pick their replacements.

Trump’s replacing Republican appointees won’t change the appointing-party balance but will likely change the ideological makeup. Of the 25 Republican appointees eligible to leave active status on salary, 18 have been so for five years. Given Figure 2’s data, there’s no reason to expect a lot of vacancies from the 25 now eligible or the six more who will be so by the end of Trump’s second term.

Figure 3 shows that Trump inherited a district bench with a strong majority of Democratic appointees in his first term. Over four years, he basically evened the proportions. Biden reversed that substantially: 82 of his 189 appointees (43%) replaced Republican appointees, versus the 60 Democratic appointees whom Trump replaced (34% of 177 appointments).

Simply for illustration: If Trump appointed 81 judges, he could achieve party-of-appointing-president parity among active status district judges—increasing the number of Republican appointees from 259 to 340 (again, assuming no vacancies). He could reach 81 by getting the six pending nominees confirmed, filling the 40 current in-place and announced nominee-less vacancies, and replacing 35 of the current 385 active status Democratic appointees. That might seem very doable, given that 109 of those 385 will be eligible to retire on a salary by late 2028. But as with circuit judges, district judges don’t rush to the exits. Indeed, of the 53 currently eligible for retirement on salary, 17 have been eligible for five years. Only 22 Democratic appointees retired on salary during Trump’s first term, and Figure 4 shows district judges are now apparently more reluctant to create vacancies than they were then.

What to watch

The assessments here could well be upended—by a surge of Trump nominations in his second term, for example, to replace an unexpected wave of judges rushing to leave full-time status. If first-year trends hold, however, Trump’s second-term judicial-appointment record looks to be less impressive than his first term’s record.

It is also worth watching whether Trump’s second term continues a Biden administration practice of nominating almost exclusively to district court vacancies without other-party senators. This approach avoids negotiations with senators, who under the Senate’s blue-slip process can veto district nominations, while concentrating vacancies in courts with other-party senators.

Only four of Biden’s 61 first-year district nominations (7%) and 38 of his 202 total district nominations (19%) were to vacancies with red or purple Senate delegations. From Clinton through Trump’s first term, such nominations hovered in the 40% to 60% range—55% for Trump’s first full term. Trump’s second-term first-year district nominees were exclusively to states with two Republican senators.

To the degree that blue states are increasingly dominated by Democratic judicial appointees and red states by Republican appointees, the judicial branch will increasingly be a part of a politically polarized nation.