By Nate Raymond
(Reuters) – No matter which candidate wins the U.S. presidential election, Kamala Harris and Donald Trump will face one similar reality: fewer opportunities to reshape the federal judiciary.
By the time Democratic President Joe Biden leaves office, he and Trump, his Republican predecessor, will have within just eight years appointed about half of all 890 life-tenured federal judges nationally.
Trump named three U.S. Supreme Court justices to Biden’s one, giving it a 6-3 conservative supermajority. Both presidents favored younger appointees overall on the judiciary, creating a generational shift on the federal bench.
Thanks to these demographics, the supply of judges eligible to take “senior status” – a form of semi-retirement judges can take at 65 after 15 years of judicial service that creates a vacancy on the bench for the president to fill – is shrinking.
Sixty-seven vacancies currently exist on the federal bench or are expected to open up based on judges’ announced plans to take senior status, but Biden already has nominees awaiting Senate consideration to fill 28 of them, according to data maintained by the judiciary.
Another 247 judges – 131 appointed by Democratic presidents and 116 by Republicans – will be eligible to move into semi-retirement over the next four years, opening new vacancies, according to an analysis by the American Constitution Society, a progressive legal group.
But judges do not always retire when they become eligible to do so, and research shows that judges are increasingly timing their retirements to when a president of the same party as the one who appointed them is in office.
If that trends holds, the victor of the Nov. 5 presidential election faces the prospect of placing far fewer judges on the bench by the end of their term than the 234 judges Trump appointed, the second most of any president over a four-year term, and the 213 so far appointed by Biden, who ranks third.
Democratic former President Jimmy Carter retains the record for the most judicial appointments in a single term, 262.
ALTERING THE BALANCE
The opportunity to significantly alter the ideological balance of the judiciary’s top echelon – the U.S. Supreme Court, which leans heavily conservative thanks in part to Trump’s appointments when he was president – also seems limited.
Three justices are in their 70s – conservatives Clarence Thomas, 76, and Samuel Alito, 74, and liberal Sonia Sotomayor, 70 – and are seen as the most likely to potentially retire, depending on the election’s outcome.
Trump’s or Harris’ ability to appoint judges could be further constrained by which party in the election wins control of the U.S. Senate, which confirms judicial nominees. Democrats face a tough fight to preserve their narrow 51-49 Senate majority.
But numbers are not everything. Some judges, thanks to which court they sit in or their judicial philosophy, can become more influential than others. And, as both Trump and Biden learned, those judges can issue rulings that can block the White House from fully implementing its agenda.
Jake Faleschini, justice program director at the progressive Alliance For Justice Action Campaign, said even with fewer vacancies, a second Trump White House would have the ability to stack appeals courts with what he called “hyper-extremist” judges by promoting ones he already appointed.
He pointed to Florida-based U.S. District Judge Aileen Cannon, a Trump appointee who dismissed the classified documents criminal case against the former president, and U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, who suspended approval of the abortion pill mifepristone. The U.S. Supreme Court in June preserved access to the pill, overturning an appellate court ruling that partly upheld Kacsmaryk’s decision.
Mike Davis, a Trump ally and founder of the conservative judiciary-focused advocacy group Article III Project, called Cannon an example of the type of “bold and fearless judges” who he hoped Trump would appoint more of in a second term.
“As president, he appointed constitutionalist judges who interpret the law as written, and he will do so again when voters send him back to the White House,” Brian Hughes, a senior Trump campaign adviser, said in a statement.
The Harris campaign did not respond to requests for comment.
Faleschini said he hoped Harris would, like Biden, “enter into the presidency with a similar focus on both demographic and professional diversity on the bench.” A majority of Biden’s judicial nominees have been women or people of color.
Davis said a Harris White House would “transform the lower courts into judicial activists,” with appointments designed to create a “left-wing” judiciary.
“The next president will finish the transformation of the judiciary one way or the other,” he said.
(Reporting by Nate Raymond in Boston; Editing by Alexia Garamfalvi and Jonathan Oatis)
