Among the achievements of President Trump quoted by supporters and the White House itself is a drive to appoint federal judges. His recent letter to the Speaker of the House gives the number of 170 new judges, out of a total of about 870, not quite three years into his presidency.

If I understand correctly, federal judges have tenure, that is, their office ends by voluntary retirement or death, except for rare impeachments. (Although apparently an increasing number of judges retire from their office early in order to pursue or continue a career in the private sector, because the judges' salary is comparatively low.)

I thus assume that any president, including Trump, simply replaces retiring judges. For a back-of-the-envelope-calculation let's assume an average age of 45 for new appointees and an average retirement age of 65. We would then expect 1/20th of them to resign every year, which amounts to 870/20 ≈ 43.

This would lead to a a number of around 120 judges to have retired during Trump's term so far.

If the discrepancy is irregular, what's the reason?

If it is, instead, within the ballpark of other presidents' terms, e.g. because an additional 50 judges retired early or because my calculation is wrong, is there a specific additional reason why it is considered noteworthy by the administration and its supporters?


4 Answers 4


The other answers indicate that Trump has appointed an unusually large number of judges, but they don't quite get to how Trump was able to nominate so many more judges than previous presidents.

Vox: What Trump has done to the courts, explained

One reason is that the Senate under the final two years of Obama's term was controlled by Republicans, and under their majority, they worked to keep federal judicial vacancies open for as long as possible.

The first reason is the effective blockade Senate Majority Leader Mitch McConnell imposed on appellate court confirmations the moment Republicans took over the Senate. McConnell’s effort to block Supreme Court nominee Merrick Garland is well-known. Less well-known are the many lower court nominees who received similar treatment. Under Trump, McConnell’s turned the Senate into a machine that churns out judicial confirmations and does little else — he’s ignored literally hundreds of bills passed by the House. Under Obama, by contrast, McConnell’s Senate was the place where judicial nominations went to die.

The numbers here speak for themselves. In the final two years of the Obama presidency, when Republicans controlled the Senate, Obama successfully appointed only two federal appellate judges — and one of those judges, Kara Farnandez Stoll, was confirmed to a highly specialized court that primarily deals with patent law.

By contrast, 10 such judges were confirmed during the same period in the George W. Bush presidency — a period when Democrats controlled the Senate.

This was compounded by the prior Democratic majority's attempt at maintaining a degree of bipartisanship in the Senate. Senator Leahy did not want to take away the power of minority Senators, and in doing so, he allowed them to hold some judgeships open for almost the entirety of Obama's term in office.

The second reason for Trump’s outsized impact on the judiciary is that, when Democrats last controlled the Senate, one especially important Democrat — Judiciary Chair Patrick Leahy (VT) — took an unusually expansive view of the rights of the minority party.

An informal tradition known as the “blue slip” sometimes gives home-state senators an exaggerated influence over who gets confirmed to federal judgeships within their states (the tradition gets its name from blue pieces of paper that home-state senators use to indicate whether they approve of a particular nominee).

Traditionally, the Senate Judiciary Committee showed some level of deference to senators who disapprove of their home-state nominees, although the level of deference given to these senators varied wildly depending on who chaired the committee and whether that committee chair was politically aligned with the incumbent president.

Leahy, who chaired the Committee for most of the Obama presidency, gave home-state senators a simply extraordinary power to block judicial nominees. Under Leahy, a single senator of either party could veto any nominee to a federal judgeship in their state (although federal appeals courts typically oversee multiple states, each individual seat on these courts is traditionally assigned to a particular state).

New York Times: (Opinion) The Left Shouldn’t Freak Out About Trump’s Judges (Yet)

This opinion piece in the New York Times supports the same conclusion.

Why is President Trump filling so many vacancies? Because Republicans stalled Obama nominees and then abandoned the custom of deferring to the wishes of home state senators, which would have blocked or modified Trump nominees in blue states.

The Fifth Circuit is a prime example. That court, which covers Texas, Louisiana and Mississippi, has leaned right for three decades largely because Texas’ Republican senators blocked all but one actual or potential Democratic appointees from that state since 1995, and Presidents Bill Clinton and Obama let them get away with it. Unlike Mitch McConnell, Harry Reid, the Democratic Senate majority leader, was too wedded to Senate tradition to challenge the traditional veto enjoyed by home state senators, and the seats remained empty until 2017.

  • 9
    Vox is hardly impartial... They're a far left outlet, even more so than the NYT.
    – jwenting
    Dec 19, 2019 at 5:53
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    @jwenting Do you dispute the facts (Reps stalling Obama's appointees, Dems deferring to single Senators while Reps are not)? Dec 19, 2019 at 6:37
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    @Peter-ReinstateMonica no doubt they do it no more or less than the dems do. If anything, seeing the way the Kavanaugh farce was perpetrated by the dems, they are far more likely to stall.
    – jwenting
    Dec 19, 2019 at 12:10
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    The problem with fact checking anything on Vox is clearly exemplified in the linked article. On more prominent stories, yes, you can usually find where Vox has egregiously interpreted facts in a manner hardly anyone could defend. On this though, 17 of their "sources" for the above article are other Vox articles, 9 are from Think Progress, and only a small handful of other sources. Asking someone to debunk every Vox article when there are never any external sources is lazy, when there are dozens of easily references examples where they've been shown to be more activist than journalist.
    – AHamilton
    Dec 19, 2019 at 13:52
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    @jwenting en.wikipedia.org/wiki/Mitch_McConnell#Judicial_nominees
    – user29567
    Dec 20, 2019 at 13:53

Yes it is unusual. Per this Vox article Trump has appointed 48 courts of appeal judges. Here is a comparison with other recent presidents at a similar point in their presidencies and their total number of appointments in parentheses:

  • Trump: 48
  • Obama: 24 (55)
  • Bush : 30 (62)
  • Clinton: 27 (66)
  • Bush Sr.: 31 (42)
  • Reagan: 23 (83)

So Trump is appointing federal courts of appeal judges at a high speed. The White House has even boasted about it. He has only appointed 112 district court judges, which is more in line with other presidents, but they aren't nearly as influential as courts of appeal judges.

Then of course there is also his Supreme Court appointments. He has appointed 2 Supreme Court justices already which is the same as Obama, Bush Junior, Clinton and Bush Senior did in all their years in office. But most importantly, he replaced Anthony Kennedy who used to be the median justice with the more conservative Brett Kavanaugh and has thus likely shifted the Supreme Court to the right.

Edit: Per Wikipedia, two more Trump appointed courts of appeal judges got confirmed by the Senate since the Vox article was published making the total number 50. I have not checked if the former presidents in the comparison had any judges confirmed in December of their third year, so I would still use 48 in the above comparison.

  • In other words, it's not the overall quantity of appointments that's unusual, it's their distribution, namely, there are more appointments at high levels than would be expected. Dec 18, 2019 at 21:12
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    @probably_someone We can't really draw conclusions on that because Trump's term isn't finished. Trump has already appointed nearly as many of these judges as Obama did over eight years. If that pace continues it would mean that the pace and total number are unusually high. He's already eclipsed the only one-termer on that list.
    – Upper_Case
    Dec 18, 2019 at 22:03

A better comparison rather than making estimates about retirements would be looking at how many judges recent presidents appointed. According to wikipedia this seems to be 347 for Obama, and 335 for Bush.

The letter you're referencing is dated at 12/07/19, so we can say it's 170 judges over 2.91 years, compared to 347 or 335 over 8 years. This would be 58.4 judges/year compared to 43.4 for Obama, and 41.9 for Bush, a significant increase.

Why this is is a bit harder to say. I would say that given what Mitch McConnel did to Merrick Garland, Republican control of the Senate in recent years has a large part to play in what's happening.

  • These numbers align well with my estimates (43 per year). Trump's numbers are higher, by about a third. Dec 18, 2019 at 11:33
  • I didn't think of that before but did the Senate block Obama nominations in the last months of his term not only for the Supreme Court but across-the-board so that there was a backlog of vacancies? Dec 18, 2019 at 11:41
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    I would think that the Republican Senate wasn't in any hurry to confirm Democrat-nominated judges and thanks to Reid's use of the "nuclear option", you can't filibuster judicial appointments (McConnell extended it to the Supreme Court) so Trump has had pretty much zero problems getting his judges in.
    – pboss3010
    Dec 18, 2019 at 13:01
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    Actually, this really precedes Garland. Democrats filibustered Bush nominees to the DC circuit and kept them vacant. Obama packed the vacant seats with his nominees and the Democrats used the nuclear option to remove the filibuster. A better argument here would be that Trump's court picks are significant to his base, and thus he is more motivated to fill vacancies than prior Presidents
    – Machavity
    Dec 18, 2019 at 17:11
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    This raises an interesting angle to consider for this question: How fast did former presidents confirm judges when their party controlled the Senate? Looks like Obama had a Democratic senate for most of his Presidency, while G.W. Bush saw the Senate switch sides repeatedly. Clinton was primarily working with a Republican senate; G.H.W. Bush was working with a Democratic senate.
    – Brendan
    Dec 18, 2019 at 22:29

I am not sure whether this is the only reason but versus the end of Obama's tenure about ten percent of federal judgeships were vacant, or about 87. An administration focusing on filling these could easily arrive at the current numbers. I am not sure about the reasons for the vacancies (only a minority appears to be due to Republicans blocking them in the Senate), and whether indeed Trump's administration officially made filling them a goal. Any pointers to sources are welcome.


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