How much will Trump’s second-term judicial appointments shift court balance?

During his first term, President Trump reveled in the number of judges he put on the federal bench—234 appointments in all—although former Presidents Joe Biden and Jimmy Carter (both one-term presidents) outdid him by one and 31 judges respectively. In his second term, Trump has, by May 7, announced five candidates. That’s not unusual compared to previous administrations but still surprising given the speedy naming of his executive branch picks and, one would think, an eagerness to infuse Trump-resistant courts with jurists he hopes are loyal first to Trump (a quality that some of his first term appointees have not demonstrated).

Trump will likely, by the end of his second term, secure confirmation of the 150 appointments he needs for bragging rights for having named more judges than any president, topping Ronald Reagan’s 383.

But will Trump’s second-term appointments change the tenor of the bench? His impact on the judiciary in Trump 2.0 is likely to be mixed—at least as measured by changes in the share of full-time judges appointed by Republican and Democratic presidents: modest at the district court level, more significant on the courts of appeals.

Here is the current balance:

The comparative compositions vary considerably over time. After the 12 Reagan-Bush years, for example, Republican appointees constituted 66% and 63% respectively of the appellate and district benches.

What prospects does Trump have to change the current balance?

District courts

Vacancies

When Trump first took office in January 2017, Democratic appointees held half the district court seats; Republican appointees, about a third. The remaining 86 district court judgeships were empty because the GOP-held Senate in 2015-16 refused to confirm scores of President Obama’s nominations. Filling those vacancies helped Trump even out the appointing party balance by the time he left office in 2021.

Four years of Biden appointments have reconfigured that balance again. Democratic appointees dominate the district bench nationally, but Trump now starts with only 54 vacancies to fill. Even if he fills all 54, that will only produce 300 Republican appointees.

More vacancies will occur. How many of them will Democratic appointees create? Almost all vacancies occur when judges leave active status under the age-plus-years-of-service formula that allows them to retire on senior status, with salary. By my count, 46 Democratic appointees are currently eligible. If Trump not only filled the 54 current and future announced vacancies but also replaced all 46 retirement-eligible Democratic appointees, the result would be the slim 51%-49% Republican-to-Democratic appointee majority shown in the table’s far-right column.

But the table predicts a best-case, for-the-sake-of-analysis scenario, not the real world. During the whole of the first Trump administration, only 22 Democratic district appointees took senior status. During Trump’s already more contentious second term, that pattern is likely to persist.

More Democratic appointees will become senior-status eligible—28 by late 2028, but, likewise, only some of them will take it. Even though other vacancies will come by death, resignation, and elevation to the courts of appeal, the potential vacancy data alone hardly suggests a glide path to a Republican-appointed dominated district court bench by 2029.

Confirmations

What’s more, Trump will be able to fill only some of the vacancies that arise—even if Republicans hold the Senate for four years, let alone if they don’t.

The days of routine, voice-vote approval of judicial nominees are over; negative votes on nominees have increased steadily under recent presidents. In today’s 53-seat GOP Senate majority, unified minority opposition and a handful of absent or renegade majority members can jeopardize a confirmation.

Trump’s first-term district confirmation rate was 84%, even though Democrats did not wage all-out warfare on his nominees. Only 10 (6%) of Trump’s 177 district confirmations received 45 or more negative votes. For Biden, that figure increased to 38% (72 of 189). Given Democrats’ unified hostility to Trump, the number of close votes is likely to increase even more, threatening confirmation prospects, especially of controversial nominees.

On the other hand, Trump, more so than in his first term, may focus his nominations on states with Republican senators. Doing so avoids time-consuming haggling with home-state Democratic senators that the Senate’s blue slip policy facilitates. The policy operated under both Trump and Biden, and Judiciary Chair Charles Grassley will apparently maintain it in Trump 2.0. It effectively gives home-state senators of either party a veto—or at least significant influence—over district court nominations in their states, obliging the administration to negotiate over acceptable nominees. That process is likely to be more difficult with senators from the opposing party.

Biden largely avoided dealing with Republican senators. Only 38 of his 189 nominations to district vacancies in jurisdictions with senators (excluding Washington, D.C., for example) were to states with Republican senators. The time it took to get them in place—534 median days, versus 249 days for states with two Democratic senators—suggests why he homed in on blue states. And doing so may have helped, at least in the short run. Biden submitted fewer nominations than Trump (201 to 210), but he appointed more district judges (189 to 177).

Of Trump’s 200 nominations in his first term to vacancies with senators, 106 were to states with a Democratic senator, with a median of 461 days to get nominations in place, versus 255 in states with two Republican senators.

To the extent vacancies allow, Trump may follow Biden’s lead. In fact, Biden’s avoidance of red and purple state vacancies could make Trump’s job easier—at least at first: 44 of the 54 current and announced district court vacancies are in states with two Republican senators, plus one more in Maine.

Court of appeals

In contrast to the district courts, where Democratic appointees now hold a clear majority, Biden and a Democratic-controlled Senate left Trump an evenly divided appellate bench. Biden reduced Republican appointees’ share of active circuit judges from 54% when Trump left office to 48%, with six vacancies currently open or announced. If Trump fills all six—as he likely will—Republican appointees will hold a slight edge.

Beyond that, filling the seats of all 13 senior-status eligible Democratic appointees would skew the courts heavily toward Republican appointees. As with the district court exercise, however, this is a best-case, not a real-world, scenario. Only eight Democratic court of appeals appointees took senior status during Trump’s first term. Four had been Republican-appointed district judges, and a fifth was a Republican whom Clinton appointed in a deal. None of the current 13 fit those descriptions. On the other hand, 13 more Democratic appointees will be eligible by 2028.

One question is whether Trump 2.0 Senate Republicans can replicate the 2017-20 juggernaut that confirmed all but two of Trump’s 56 appellate nominees, and in a median of 127 days (compared to 233 for Trump’s district judges).

Depending on the answer, the 2029 appellate bench could include more than 51% Republican appointees—though likely less than the 59% projected in the most optimistic scenario.

A note about individual courts: Commentators on possible appellate appointments speculate about shifting majorities of appointees among active-status judges on each of the 13 courts of appeals. These discussions, often using the “Trump Flips Another Circuit to Majority GOP Appointees” argot, are misleading, suggesting that every court of appeals decision is made by the court’s full complement of active judges. In fact, almost all are randomly selected by three-judge panels that may not reflect appointing-party division among all active-status judges. And the panels often include senior and visiting judges. Those are topics, at any rate, for separate posts.

Ideology apart from appointing president’s party

Political scientists have shown that the party of the appointing president, while not necessarily signaling how a specific judge will rule in a specific case, is a fairly reliable guide to differences overall in the rulings of Democratic and Republican appointees—hence the focus on that variable in this post. One long-time, ongoing analysis of thousands of decisions of district court judges reveals that, among those appointed by presidents since Lyndon Johnson, in civil liberties and economic regulation cases, all Republican presidents’ appointees made lower proportions of “liberal” decisions (using standard social science definitions) than those made by all Democratic presidents’ appointees.

The same analysis, however, shows decisional differences among appointees of the same party. Except for Reagan’s appointees in regulation cases, Trump’s appointees were the most conservative in both categories. In criminal cases, however, there are two striking exceptions. Biden’s appointees, among all appointees, had one of the lowest proportions of liberal decisions. Trump’s appointees, by contrast, were the most liberal of any presidents. That may reflect, the authors surmise, Republicans’ growing distrust of law enforcement.

The judges Trump appoints to replace Republican appointees will make their own ideological impact. Thirty-nine Republican-appointed district judges are now eligible to retire on salary, as are 24 such circuit judges, and they may be more inclined than Democratic appointees to open up vacancies for Trump. Trump appointees to any vacancies they create might well be more conservative than incumbents. Most will almost certainly be more loyal to Trump, since such loyalty is likely to be the chief selection criteria.