Even conservative judges are punting retirement plans fearing Trump replacement: professor

During his first term, President Donald Trump reshaped the federal judiciary with a wave of right-wing appointments. But in his second term, judicial nominations have gotten off to a slow start — partly because there just aren’t as many seats to fill.

That's not likely to change anytime soon, Notre Dame Law Professor Derek T. Muller wrote for his Excess of Democracy blog. The pace of judicial retirements has slowed to record lows.

Looking back at all judicial appointments since 2001, Muller flagged two "fairly striking trends."

"The first is the rush of retirements and the increase in vacancies in the early days of the Biden administration. The second is the exceedingly slow pace of retirements in the second Trump administration, disproportionately low," he said.

Trump saw 112 vacancies to start with in his first term. This time around, he has just 40 vacancies and 10 future vacancies.

"That’s barely moved, to 46 vacancies and 15 future vacancies," wrote Muller.

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Part of this might be explainable by there just being fewer retirement-age Republican-appointed judges now, Muller wrote, but that doesn't tell the whole story. "By my count, there are around 20 or so senior status-eligible Republican-appointed court of appeals judges, and another 50-ish district court judges (or who are near senior status and could announce a future vacancies). That is, and I haven’t looked back all the statistics, it might be a lower cohort than the past, but it is not to say that the well is dry."

What this suggests, Muller wrote, is that even a lot of conservative judges are afraid Trump will replace them with extremists or people who otherwise don't share their judicial philosophy: "If the administration is not giving federal judges adequate assurances that their nominees will be of a type of the last administration, then the revealed preferences of these judges may tell us a great deal, and it could redound to the benefit of a future Democratic administration."

Conservative Case Western Reserve University law professor Jonathan Adler, a seasoned attorney who has litigated cases against the Obama administration at the Supreme Court, offered a similar assessment on X: "If the Trump Administration wants more judicial vacancies to fill, it needs to make high-quality judicial nominations."

Earlier this week, reporting indicated Trump is considering nominating Emil Bove, one of his former personal attorneys, to a key appellate court position.