While the Georgia runoff still awaits, as of the writing of this article, Democrats have defied political history and maintained their razor-thin Senate majority past the midterm elections. With the loss of the House, Democrats are unlikely to pass transformative legislation in the next two years, freeing the Senate to prioritize nominations (where the House has no role). Court watchers will likely welcome this, as, despite historic successes with their razor-thin majority, the Biden Administration has little time to rest if it intends to fill a sizeable proportion of the 100+ lower court vacancies currently pending in the federal judiciary. Currently, there are sixteen circuit court vacancies and ninety-seven district court vacancies pending (including seats announced to be vacated but currently still full). In comparison, 56 judicial nominees are currently before the senate, twelve to circuit courts and 44 to district courts. As the Biden Administration and Senate Democrats turn to nominations and confirmations, it’s useful to look again at the current landscape.

As a reminder, the process for choosing circuit and district court nominees is fairly different. After the practice of requiring blue slips for appellate nominees was terminated during the Trump Administration, the Administration is under no obligation to secure pre-approval from home state senators before the nominee can receive a hearing. However, in practice, the Administration is still incentivized to consult with home state senators, which can slow down the nomination process, particularly in states with Republican senators.

Unlike circuit court vacancies, district court seats still require home state approval in order to be confirmed. This means that the ball is largely in the senators’ court in terms of naming nominees. This doesn’t mean that the Administration is completely absent from the process. It is still responsible for prodding senators, negotiating agreements, and choosing the right candidate. In fact, the Administration started right off the gate with an announcement that it expected recommendations for vacancies within 90 days of the announcement. This makes it all the more surprising the sheer number of district court seats that sit without nominees today.

This split is less surprising in states that only have Republican Senators, a group which includes thirty-five district court vacancies without nominees: six in Florida; five in Texas; three in Indiana and Louisiana; two each in Alabama, Missouri and Oklahoma; and one each in Alaska, Arkansas, Idaho, Kansas, Kentucky, Nebraska, North Carolina, South Carolina, South Dakota, Tennessee, Utah, and Wyoming. Many of the home state senators in these states have been fairly open about their unwillingness to work with the Administration on a nominee. However, others have been more willing to be involved, with Iowa senators, for example, recommending U.S. Magistrate Judge Stephen Locher, a young Democrat, to the bench (Locher was swiftly and unanimously confirmed). The lone district court nominee in a 2-Republican state is also the most recent, Scott Colom in Mississippi.

Similarly, in states with split delegations, the White House understandably needs to move with the support of home state Republican senators. It has had mixed luck in the states it has tried this with. Ohio Sen. Rob Portman returned blue slips for three nominees who were confirmed (one more remains pending). Similarly, the White House was able to reach a four nominee deal with Sen. Pat Toomey in Pennsylvania that included a nominee of his choice. In contrast, Sen. Ron Johnson has chosen to block a nominee that he previously signed off on.

Perhaps the most surprising in terms of vacancies without nominees are blue states or territories, where Democratic senators would presumably be incentivized to send recommendations quickly: yet, sixteen district court vacancies from blue states are nomineeless today, including four from California, three from New Jersey, two each from Connecticut, Illinois, and Michigan, and one each from Colorado, Maryland, and New York. A summary of this landscape follows:

D.C. Circuit – 1 vacancy out of 11 judgeships (one nominee pending)

The so-called “second highest court in the land”, the D.C. Circuit was the site of Biden’s first appointee when Jackson was confirmed to the court last June, a mere two months after her nomination. However, since that haste, a second vacancy languished for more than a year, taking nearly nine months after Judge David Tatel announced his departure from active status before Judge Michelle Childs was nominated, and taking Childs eight months to be confirmed. Jackson’s elevation to the Supreme Court reopened another vacancy, and the White House moved more quickly, elevating U.S. District Judge Florence Pan (confirmed in September). A fourth nominee, Brad Garcia remains pending on the Senate floor to fill the last remaining vacancy on the court, vacated by Judge Judith Ann Wilson Rogers.

The only district court that reports to the D.C. Circuit is the U.S. District Court for the District of Columbia. The 15-judgeship court has one current vacancy, from Pan’s elevation, and one future vacancy, with Judge Colleen Kollar-Kotelly taking senior status upon confirmation of a successor. Nominees are pending for both vacancies with Ana Reyes currently awaiting a floor vote and Judge Todd Edelman having received a Judiciary Committee hearing last week.

First Circuit – 2 vacancies out of 6 judgeships (one nominee pending)

The smallest court of appeals in the country was also the sole geographically-based court not to see a single Trump appointment. Biden has already named Judge Gustavo Gelpi and Public Defender Lara Montecalvo to the court. Additionally, reproductive rights attorney Julie Rikelman is pending a vote before the Senate Judiciary Committee to replace Judge Sandra Lynch. The final seat, based in New Hampshire, was vacated by Judge Jeffrey Howard nearly nine months ago, and lacks a nominee. Given that New Hampshire has two Democratic senators, the lack of a nominee is puzzling.

The district courts covered by the First Circuit have five pending judicial vacancies, all of which have nominees. The District of Massachusetts has three current vacancies and three nominees pending, two of whom already have hearings.

The District Court for the District of Puerto Rico is down two judges, with nominees to fill the seats already on the Senate floor. A final Senate vote on Judge Camille Velez-Rive is expected next week, which should leave Judge Gina Mendez-Miro as the sole pending P.R. nominee.

Second Circuit – 1 vacancy out of 13 judgeships (one nominee pending)

Having replaced five left-leaning judges on the Second Circuit, the Biden Administration has already had a significant impact on the court. However, Justice Maria Araujo Kahn, nominated to replace 81-year-old conservative Jose Cabranes, remains pending in the Senate Judiciary Committee and has a long line of nominees ahead of her to be confirmed.

Connecticut, which saw three Biden appointees hit the bench last year, is one of the worse blue states when it comes to nomineeless vacancies, with two of the eight active judgeships vacant and no nominees on the horizon.

Meanwhile, the district courts in New York are also shortstaffed, with nine vacancies among them. The hardest hit is the Eastern District of New York, which has four vacancies out of sixteen judgeships, The bright side for the White House is that eight of the nine vacancies have nominees pending. The down side is that only three of the nominees are currently on the Senate floor (with one, Anne Nardacci, expected to be confirmed next week). Two of the longer pending nominees, Southern District of New York picks Dale Ho and Jessica Clarke, are currently bottled up in Committee, pending a discharge vote. Three more await hearings.

Third Circuit – 2 vacancies out of 14 judgeships (two nominees pending)

This moderate court currently has one Biden nominee confirmed (Arianna Freeman nominated to replace Judge Theodore McKee) but Judges Thomas Ambro and Brooks Smith don’t have replacements yet although nominees are pending on the Senate floor for both seats and should, if prioritized, be confirmed easily.

Two of the three states covered by the Third Circuit have judicial vacancies. The biggest number are in Pennsylvania, which has seven vacancies, four of which have nominees, the aforementioned four nominee deal. With Democrat John Fetterman replacing Toomey, it is likely that new recommendations will be sent out for the remaining vacancies and they will likely not be confirmed in the next few months.

The District of New Jersey, vacancy-ridden when the Biden Administration came to office, is now down to three seats left to fill. However, none of the three vacancies have nominees pending even though the oldest dates back seven months. With control of the Senate solidified, it is likely that New Jersey will see new district court nominees shortly.

Fourth Circuit – 2 vacancies out of 15 judgeships (one nominee pending)

The Fourth Circuit currently has vacancies out of South Carolina and Maryland. Judge DeAndrea Benjamin, nominated to the South Carolina seat, has home state senator support and will likely be confirmed easily in the new Congress. However, the bigger surprise is that a Maryland vacancy announced last December still lacks a nominee. Maryland’s Democratic senators have a mixed record in the speed of recommendations and a district court vacancy in the state announced last year also lacks a nominee.

In other states, Virginia has two nominees pending before the Senate Judiciary Committee for a final vote. Their confirmations would fill all the remaining vacancies on the state’s district courts.

Additional vacancies exist in North Carolina and South Carolina. Both North Carolina and South Carolina have two Republican senators, so any nominee will largely depend on the White House’s negotiations.

Fifth Circuit – 2 vacancies out of 17 judgeships (one nominees pending)

The ultra-conservative Fifth Circuit became even more so when the youngest Democrat on the Fifth Circuit, Judge Gregg Costa, unexpectedly announced his resignation from the bench. Nine months after Costa’s announcement, there is still no nominee pending to replace him, although Judge Dana Douglas, nominated to replace Octogenarian liberal James Dennis, is poised for confirmation after bipartisan support in the Judiciary Committee.

On the district court level, both Louisiana and Texas have multiple district court vacancies and no hint of any nominee. Mississippi, on the other hand, despite having only one vacancy, does have a nominee: Scott Colom. While Mississippi senators have not yet announced support for Colom, they have not expressed opposition either, suggesting that Colom might be, surprisingly, on track for confirmation.

Sixth Circuit – 1 vacancies out of 16 judgeships (one nominee pending)

Of the three vacancies on the Sixth Circuit that opened in the Biden Administration, only the Ohio based seat of Judge R. Guy Cole remains open. Rachel Bloomekatz, nominated to replace Cole, is awaiting a discharge vote in the Judiciary Committee. It remains to be seen if Sen. Sherrod Brown will push for Bloomekatz to receive a final Senate vote by the end of the year.

On the district court level, each of the four states under the Sixth Circuit have vacancies pending. After the White House’s proposal to nominate conservative lawyer Chad Meredith to the Eastern District of Kentucky fell through, there remains no nominee to replace Judge Karen Caldwell, although Caldwell has reaffirmed that she will only leave the bench if a conservative is appointed to replace her.

The Eastern District of Michigan has four pending vacancies and two nominees (one on the Senate floor). Michigan’s Democratic senators have been relatively slow in naming nominees, so it’s unclear when nominees will hit the Senate for the remaining vacancies.

The Southern District of Ohio has a single vacancy, with a nominee, Jeffery Hopkins, pending a Judiciary Committee vote. With Sen. Rob Portman set to be replaced by J.D. Vance, it is possible that Democrats will prioritize Hopkins in an effort to fill the seat before Vance’s input is needed.

Finally, a vacancy is pending on the Western District of Tennessee. The White House and Tennessee Senators battled over the Sixth Circuit nomination of Andre Mathis, and while the White House ultimately won confirmation, other seats could become casualties. Nonetheless, the White House has put forward U.S. Attorney nominees with senatorial support in the state, suggesting that some common ground can be reached to fill the vacancy.

Seventh Circuit – 2 vacancies out of 11 judgeships (one nominee pending)

In addition to naming Judge Candace Jackson-Akiwumi and Judge John Lee to the Seventh Circuit, Biden has the chance to add two more judges to the court. Judge Doris Pryor, currently pending on the senate floor, is likely to be confirmed before the end of the year. However, the second vacancy, opened by Judge Michael Kanne’s death, lacks a nominee. Given the support Indiana’s Republican Senators gave to Pryor, the White House is likely to grant them deference in turn in cchoosing a nominee to replace Kanne.

On the district court level, Illinois nominees Lindsay Jenkins and Colleen Lawless are pending in the Senate Judiciary Committee. The Northern District of Illinois has two more vacancies that are likely to get nominees shortly.

Meanwhile, three vacancies are pending in Indiana without nominees. It is likely that the White House may lump these nominees into a package with the Kanne seat to allow for all the seats to be filled at once.

Wisconsin is likely a sign of frustration for the White House as Senator Ron Johnson has now blocked both a federal judge nominee and a U.S. Attorney nominee that he previously signed off on. With Johnson’s narrow re-election, it is likely that the nomination of Judge William Pocan is dead, and the White House and senators will have to renegotiate a new nominee to replace Judge William Griesbach.

Eighth Circuit – 0 vacancies out of 11 judgeships

While the Eighth Circuit remains the sole court of appeals not to see a vacancy open under Biden, there are a number of vacancies open in the district courts covered under the Circuit, including one each in Arkansas, Minnesota, Nebraska, and South Dakota, and two pending in Missouri. Of these, only the seat in Minnesota has a nominee (Jerry Blackwell, who is awaiting a floor vote). Of the remaining vacancies, the White House has failed to nominate any U.S. Attorneys in those states, boding poorly for the likelihood of any agreement on judicial nominees.

Ninth Circuit – 1 vacancies out of 29 judgeships (one nominee pending)

Compared to other courts of appeals, the White House has had comparative success in confirming judges to the Ninth Circuit, naming six, with a seventh pending a judiciary committee vote. The district courts covered by the Ninth Circuit were equally successful for the White House, which has already confirmed 19 judges to (compared 14 judges that the Trump Administration named over four years).

An additional 13 nominees are currently pending to fill 19 vacancies, eight in California, four in Washington, and one in Oregon. Of the seats needing nominees, four are in California (two on the Central District and two on the Southern District). Another two are in Alaska and Idaho respectively, which have two Republican senators apiece.

Tenth Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

The Kansas seat vacated by Judge Mary Briscoe is the oldest appellate vacancy in the country. Judge Briscoe announced her move to senior status in January 2021, and a nominee, Jabari Wamble, was announced in August 2022. Wamble has yet to have a Committee hearing but could, in theory, be confirmed early next year.

Among the states covered by the Tenth Circuit, there are eight district court vacancies, out of which two have nominees. Five of the six nomineeless vacancies are in states with two Republican senators, with particularly long-pending vacancies in Kansas, Oklahoma, and Utah, in particular. Given the nomination of Wamble in Kansas and the successful confirmation of Trina Higgins to be U.S. Attorney in Utah, it is possible that the White House is able to reach an agreement with senators to fill the vacancies shortly.

Eleventh Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

Judge Beverly Martin announced her retirement from the Eleventh Circuit in July, ultimately leaving the court in late September. The Biden Administration nominated civil rights attorney Nancy Abudu to the court in December, but then unwittingly delayed Abudu’s hearing by quixotically claiming that she was under Supreme Court consideration. While no serious observer believed that Abudu would be nominated to the Supreme Court, her consideration ensured that Abudu’s nomination would not be processed until a nominee was named. Furthermore, Abudu’s nomination proved deeply controversial and deadlocked in Committee, forcing a discharge vote that has yet to occur. Given the risk to Abudu’s nomination if Warnock were to lose, it is likely that Democrats would seek to prioritize her nomination if the runoff went poorly.

On the district court level, Alabama has two pending vacancies, one from the elevation of Judge Andrew Brasher in the Trump Administration, and the second from Judge Abdul Kallon’s untimely resignation. Both lack nominees as outgoing Republican senator Richard Shelby expressed his opposition to any left-of-center nominee. With Shelby’s retirement and the election of Katie Britt to the Senate, it remains to be seen if a package can be reached (it’s possible that Alabama senators may demand the renomination of Trump nominee Edmund LaCour.

Meanwhile, Florida has more nominee-less vacancies than any other state: six. Both Senator Marco Rubio and Florida’s Democratic House delegation recommended attorney Detra Shaw-Wilder (a Democrat) to the Southern District of Florida last year, but no nominee has hit the Senate yet. The recent announcements of U.S. Attorney nominees to two of the three open positions in Florida, however, could presage a thaw in negotiations over the state’s appointments.

Conclusion

On one side, one could argue that the Senate has plenty of time to fill these vacancies, as well as more that will inevitably open over the next two years. After all, despite a packed legislative calendar, the Senate has already confirmed eighty-five nominees (and will likely confirm more before the end of the Congress). However, it’s also important to recognize the fragility of the Democrat’s narrow majority. Just because 50 members held together over the last two years is no guarantee that it will last another two. In a sense, winning the Georgia runoff and securing a 51st seat will be all the more important for Democrats if they seek to rival Trump’s judicial legacy.

In the coming month, two Obama appointed judges are resigning from the bench. Judge Gregg Costa, who serves on the Fifth Circuit and Judge Abdul Kallon, who serves on the U.S. District Court for the Northern District of Alabama, are both resigning on August 31, 2022. This, in and of itself, is not particularly remarkable, until one considers that both judges, giving up lifetime appointments, are barely knocking on the doors of their 50s. It is unusual for a judge to leave the bench before reaching eligibility for retirement, but for two to leave in the same month when they have decades of tenure ahead of them does raise a question. Both Costa and Kallon were appointed to the bench at age 40. Do judges appointed at younger ages, despite the hope for their longevity, tend to leave the bench early?

The Rule of 80

Federal judges become eligible for retirement (or for reducing their caseload under senior status) under the Rule of 80. That means that, when the length of a judge’s active tenure on the federal bench added to their age meets or exceeds 80, they are eligible to retire at full pay. As such, a judge appointed to the bench at age 52 would have to serve fourteen years in active status before becoming eligible for senior status. In comparison, a judge appointed at age 56 would serve only twelve years in active status before becoming eligible. The exception to the rule of 80 is if the judge was appointed to the bench before age 50, in which case the judge becomes eligible on their 65th birthday regardless of the length of their tenure. Because of this exception, in theory, judges appointed in their 30s and 40s have a lengthy tenure as an active judge before hitting eligibility for senior status or retirement.

Judges Who Resigned Before Hitting the Rule of 80

Looking back fifty years, the last ten presidents have appointed a total of eighty judges who resigned from the bench before hitting eligibility for senior status/retirement. Breaking it down, eighteen of President Nixon’s appointees to the federal bench resigned early. In comparison, President Ford’s number is three, President Carter appointed eleven, President Reagan appointed nine, President George H.W. Bush appointed eleven, President Clinton appointed thirteen, President George W. Bush appointed eleven, and President Obama has appointed four early resignations (including Costa and Kallon). So far, none of President Trump’s or President Biden’s appointees have resigned early.

Looking at the eighty resignees, they were generally appointed to the bench at comparatively younger ages. While the average judicial nominee over the last fifty years has been appointed to the bench between 50 to 52 years of age, only thirteen of the eighty resignees were appointed to the bench at age fifty or above. In comparison, eighteen of the resignees were appointed between the ages of forty-five and forty-nine, thirty-one were appointed between forty and forty-four, and eighteen were under the age of forty when they were appointed to the bench. As such, a significant majority of judges who resigned over the last fifty years were under the age of forty-five when appointed to the bench.

This is even more notable when one considered how few nominees, comparatively speaking, were traditionally appointed to the bench at such young ages. Consider the following:

• Nixon appointed forty-six judges under the age of forty five. Twelve of them or 26% resigned early. In comparison, only 3.2% of judges appointed at forty five or older resigned early.
• Ford appointed eleven judges under the age of forty five. Three of them or 27.3% resigned early. In comparison, none of his judges appointed at forty five or older resigned early.
• Carter appointed fifty judges under the age of forty five. Seven of them or 14% resigned early. In comparison, only 1.9% of judges appointed at forty five or older resigned early.
• Reagan appointed one hundred and eleven judges under the age of forty five. Five of them or 3.6% resigned early. In comparison, 1.8% of judges appointed at forty five or older resigned early.
• George H.W. Bush appointed sixty-eight judges under the age of forty five. Eight of them or 11.8% resigned early. In comparison, only 2.3% of judges appointed at forty five or older resigned early.
• Clinton appointed sixty-two judges under the age of forty five. Seven of them or 11.3% resigned early. In comparison, only 1.9% of judges appointed at forty five or older resigned early.
• George W. Bush appointed forty-nine judges under the age of forty five. Five of them or 10.2% resigned early. In comparison, 2.1% of judges appointed at forty five or older resigned early.
• Obama appointed forty-six judges under the age of forty five. Two of them or 4.3% resigned early. In comparison, 0.7% of judges appointed at forty five or older resigned early.

All in all, 11% of judges appointed by these Presidents who were under the age of 45 at the time of appointment ended up resigning early, a disproportionately high number.

Nor can this discrepancy be explained by younger judges merely having a larger window to resign early. Of the judges appointed under the age of forty, for example, they left the bench at an average age of forty-seven, with most of them serving less than a decade on the bench.

Why Do Younger Appointees Leave Early?

So, what can explain why judges appointed to the bench early are more likely to leave the bench early? Looking at the judges who resigned early, there are three main motivations for these resignations.

The first and largest category of resignations involve judges who returned to private practice. Many of these judges cited the comparatively low pay for judges in motivating their decision to retire. Central District of California Judge Stephen Larson, for example, resigned his lifetime appointment three years in, noting that a federal judge’s salary is insufficient to support his family of seven children. Larson was only forty-five when he left the bench. About twenty years before Larson left the bench, fellow California Judge Raul Ramirez also resigned the bench at forty-five, again citing the comparatively low pay that comes with being a federal judge. Other judges, like Costa, cited a desire to return to the role of an advocate. No matter what the justification, however, there is no denying that a federal judge can easily quintuple their salary (or more) by moving to private practice. For a judge who is looking at a decade or more until their caseload eases with senior status, the desire for a more lucrative career may be a strong motivator.

The second category of judges are those who accepted other appointments or careers (please note that judges elevated to the courts of appeals or supreme court are not considered resignations). This includes judges who accepted appointments on state courts, including Eastern District of Michigan Judge Patricia Boyle, who was appointed to the Michigan Supreme Court. Boyle’s son noted that she felt she could do more for the people of Michigan as a state judge. Other judges took executive appointments, including Judge Louis Freeh, who resigned a seat on the Southern District of New York at forty-three to become Director of the Federal Bureau of Investigation, and Judge Mark Filip, appointed to the Northern District of Illinois at thirty-seven, who left four years later to serve as U.S. Deputy Attorney General.

The final category of resignations include judges who resigned due to scandals or ethical issues. This group includes judges who served on the bench for a comparatively longer period of time. Colorado Judge Edward Nottingham, for example, served nearly two decades on the bench before resigning amidst multiple misconduct scandals. Despite the length of his tenure, Nottingham was still five years away from senior status eligibility when he retired. Similarly, Middle District of Alabama Judge Mark Fuller resigned his lifetime appointment after twelve years on the bench after an arrest for misdemeanor battery against his wife.

Explanations

So what does all this tell us about why younger judges tend to leave the bench early. The answer might be remarkably simple. For judges appointed after 20+ years of legal experience, a lifetime appointment can be seen as a capstone on their career. However, younger judges may see it as a tool for career advancement, and, as such, might be more willing to step away if they find another position that is sufficiently attractive.

Of course, none of this suggests that appointing younger judges is completely counterproductive. The vast majority of federal judges, appointed young or otherwise, stay on the bench until retirement eligibility. Furthermore, younger appointees are more likely to be elevated to appellate positions. Every justice currently serving on the Supreme Court, for example, was originally nominated for the federal bench at age forty-five or younger (although Roberts and Kagan were not confirmed on their original nominations). However, the likelihood of younger judges to resign their appointments early could mitigate the utility of appointing younger candidates. As such, future Presidents may consider whether their 40-year-old nominee would will leave the bench a decade down the road.

Barring the unexpected, Judge Ketanji Brown Jackson will be confirmed to the Supreme Court this week, capping a ten week nomination and confirmation process since Justice Stephen Breyer’s retirement announcement in late January. While the Administration would likely take a (deserved) victory lap over Jackson’s confirmation, the most crucial period for securing Biden’s judicial legacy begins after.

While the Biden Administration came into office with comparatively few judicial vacancies to fill, a rash of Democratic appointees moving to senior status has created an opportunity for the Administration to leave a substantial imprint on the lower courts. Jackson’s confirmation will leave 24 lower court nominees left before the Senate, while pales in comparison to the 108 pending judicial vacancies listed on the U.S. Courts website. The situation is even more significant, given that many confirmed vacancies, including those by Third Circuit Judge Thomas Ambro, Ninth Circuit Judges Andew Hurwitz, Margaret McKeown, and Sidney Runyan Thomas, and D.D.C. Judge Colleen Kollar-Kotelly, are not public on the site yet. As such, the administration has around 90 vacancies on the federal bench with no nominees pending. Given that, fourteen months into his Presidency, Biden has yet to send 90 judicial nominees to the Senate, the Administration will have to move fast to have any hope of filling a substantial number of these vacancies.

Consider that the Administration has failed to name a single lower court judge to the bench since Judge Stephanie Davis was tapped two months ago. This is likely because the White House is strategically choosing to hold lower court nominations, including those that may be controversial, in order to avoid muddying the waters for Jackson. This means that the Biden Administration’s 82 nominees submitted to the Senate so far are slightly lower than the 98 judges nominated by President Bush and the 87 nominated by President Trump. Biden is particularly behind on circuit court nominations, having nominated 20, while Trump had made 25 as of this point in his Presidency, while President Bush had nominated 31. Even President Obama, rightfully criticized for a slow pace on nominations, had named 18 appellate nominees by April 1 of the second year of his presidency. With the Senate having confirmed 15 judges, only five of the 24 appellate vacancies currently pending have a nominee.

On the confirmation side, the Biden Administration has run far ahead of its immediate predecessors. For example, the Biden Administration has seen 58 judges confirmed so far, and the Trump Administration only saw 29 judges at this point in its Presidency, while the Obama Administration only saw 19. However, both prior Administrations had run behind their predecessors. Both the Clinton and Bush Administrations, for example, had seen 45-50 judges confirmed by this point in their Presidency, just slightly behind the Biden Administration.

However, on average, a judicial nominee in the Biden Administration has taken 4 months from nomination to confirmation. This means that, in order to be confirmed before the August recess (after which many Democratic senators may be absent campaigning in their home states), nominees need to be sent to the Senate now. Additionally, any nominees sent will likely also run into the limited space in Senate Judiciary Committee hearings, which typically occur every two weeks and include 4-6 nominees each. All this makes the next month or two crucial for nominations. Any nominee nominated later than early May may not see confirmation this year.

To be fair, none of this to say that the Biden administration hasn’t had a significant impact on the federal judiciary. One could argue that, given the bare majority they control, Democrats have outperformed expectations. However, the Administration now faces both an opportunity and a ticking clock. Due to a large number of judges moving to senior status, Biden could easily outperform the 30 judges that Trump was able to confirm to the courts of appeals in his first two years. However, for the Biden Administration to cement its judicial legacy, it will need to urgently snap back onto the lower courts. The first step might be if large batch of nominees, including 5-6 appellate picks, hits the Senate after the Jackson confirmation this week.

Nominations hearings are predictable.  Half the Senators on the Judiciary Committee fawn over the nominees, while the other half pepper them with hypotheticals and questions they know the nominee won’t answer.  For their part, the over-coached nominees avoid all but the softest of softballs, while firmly resisting any attempt to actually probe their thought processes.  As an interview process for a lifetime appointment, the nominations hearing rarely yields genuine insights.

This state of affairs cannot be blamed on one particular entity or party.  Rather, both parties have, over time, contributed to the current playing field, where all nominees need to do is to avoid ticking off the 50 senators they need to get confirmed.  As such, one wonders: how can this performative exercise be more useful?  How can a nominations hearing better illustrate a nominee’s temperament, philosophy, and ideology?

To that end, here are ten questions that, if asked and answered in good faith, can lend some authenticity to the process.  Now, nominees are mindful, of course, of their ethical obligations, and are unlikely to answer any questions regarding privileged communications or about contested matters they are likely to hear.  With that in mind, senators should ask:

What is a legal, political, social, or moral position you previously advocated for that you no longer believe to be correct?

This is a question that I’m surprised hasn’t been asked more to nominees.  Unlike hypothetical questions about future cases, nominees are generally free to say: “I argued X in this case. I lost. And I now realize that the judge got it right.”  Furthermore, getting an answer to this question establishes two important things: first, it affirms that the nominee is willing to acknowledge when they got things wrong and they’re willing to grow from their mistakes; and second, it establishes that they are not set in their views. They’re willing to grow and evolve, an important characteristic to inculcate in someone seeking a lifetime appointment.

When was the last time you changed your mind on a legal, political, or moral issue after a discussion with someone who holds a contrary position?

Federal judges, insulated by lifetime appointments, are constantly at risk of ossifying in their legal views, particularly if those views are never challenged in discussions or arguments.  However, there are many federal judges who maintain their intellectual curiosity even after joining the bench and who are willing to engage with critics and contrarians to better understand and shape their views.  The answer to this question demonstrates both that: 1. the nominee has an open mind and is willing to change their views when they’re wrong; and 2. they’re willing to engage with those they disagree with.

Name a Time in Which You were able to convince another person of the validity of your view/position after a discussion.

A corollary to the previous question, this question also has the benefit of reinforcing the nominee’s ability to persuade others of the positions they hold, particularly important in appellate nominees.

Name a policy/law/regulation that you oppose as a matter of policy but agree is constitutional under current precedent.

The wisdom of a particular law and policy is often equated with its constitutionality.  While there are exceptions (eg. Justice Thomas’ concurrence in Lawrence criticizing the Texas ban on sodomy while finding it constitutional), it is increasingly rare for a judge to find that a policy they find strongly objectionable is not barred by the Constitution or caselaw.  Asking this question will demonstrate that a nominee can parse the difference.

The issue with the question, of course, is that it requires the nominee to make a statement acknowledging the constitutionality of a hypothetical law, which may be barred where a future challenge to that law may come before the judge.  However, as long as the question is focused on relatively uncontroversial areas of law, the nominee may be able to permissibly answer.

Name a policy/law/regulation that you support as a matter of policy but agree is unconstitutional under current precedent.

This is arguably an even harder question to answer than the previous one.  It would require a nominee to acknowledge the current structure of limited government set out in the constitution and note that it prevents, for better or for worse, the government from meaningfully intervening in many problems.  It is nonetheless important that a nominee is able to acknowledge this fact.

What is one thing you would seek to change about the court you’re about to join?

From reforms to PACER to cameras in the courtroom, the movement to democratize access to the federal court system is growing.  An answer to this question should show that the nominee is willing to recognize the shortcomings of the court systems they are seeking to join, to rethink old orthodoxy, and to challenge the status quo in service of justice.

What have you done so far to give back to your community as a lawyer?  What will you do as a judge?

The federal bench has been rightly criticized for setting itself apart from the communities it serves.  As such, nominees who demonstrate a connection with their communities, whether it’s through pro bono service, volunteer work, or other forms of engagement are particularly valuable.  Answering this question would also lead the nominee to demonstrate their willingness to continue such acts as a judge.

What is a bias/prejudice that you currently struggle with?  How do you work to overcome that prejudice?

This is an important question and one that’s asked too little.  While acknowledging any bias or prejudice is widely seen as career suicide, the bottom line is that human beings almost innately carry biases and prejudices with them, and it is only by acknowledging and working against them that one can overcome those prejudices.  Such prejudices do not have to be based on race, gender, or such immutable characteristics.  One could, for example, carry a bias against working moms, against city-dwellers, against west-coast rap fans, against those cheering the Red Sox, or against any identifiable group.  It is particularly important for judicial nominees to acknowledge their biases and work to overcome them given the power and influence they are seeking to take on.

What is a quality you have seen in a judge that you would seek NOT to emulate on the bench?

As awkward as it may be for nominees seeking a judicial position to acknowledge, judges are human.  They are sometimes short-tempered, and often wrong.  A nominee needs to be able to recognize that judges do err and that it is just as important to learn from the mistakes of others as it is to learn from one’s own mistakes.

What is the Biggest Mistake You Have Made in Your Career?  How Would You Seek to Avoid It on the Bench?

And finally, a question that encapsulates the others asked before. One that requires the nominee to demonstrate introspection, forethought, self-awareness, open-mindedness, and a willingness to get things wrong.  Like it or not, all lawyers make mistakes.  The best among us learn and grow from them and it is essential that our judges do as well.

With the nominations hearing of Judge Ketanji Jackson beginning today, it will be interesting to see if the hearings follow the predictable patterns laid out over the past two decades.  If any of the above questions are asked and answered in good faith, however, it will yield significant insight into Judge Jackson’s approach to the bench and the kind of justice she would be.

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We finish with the states of the West.

Ninth Circuit

Court of Appeals

In terms of the number of judges on the court, the geographic area covered, and the population served, the Ninth Circuit Court of Appeals is the largest in the country. The whopping twenty-nine judgeship court has been the target of many attempts to break it up, ostensibly due to its liberal leanings. Whatever its previous leanings (the Ninth was never as liberal as critics alleged), the current court is fairly evenly divided between liberals and conservatives. The court currently has ten judges appointed by President Trump, nine Clinton appointees, seven Obama appointees, and three Bush appointees. While the court is currently full, four Clinton appointees, Susan Graber, Marsha Berzon, Richard Paez, and William Fletcher, have announced their intention to move to senior status upon confirmation of successors. Only Graber’s seat has a nominee, labor lawyer Jennifer Sung.

Additional vacancies are likely as eight other judges on the court are eligible for senior status: Clinton appointees Sidney Runyan Thomas, Margaret McKeown, Kim McLane Wardlaw, Ronald Gould, and Johnnie Rawlinson; and Bush appointees Consuelo Callahan, Milan Dale Smith, and Sandra Segal Ikuta. Additionally, Obama appointee Andrew Hurwitz will also become eligible for senior status next July. The most likely of these judges to take senior status is Chief Judge Thomas, who may make the move once he concludes his term as Chief on December 1. Of the Bush appointees, the moderate Smith, who will be eighty next year, is the most likely to take senior status.

Alaska

The District of Alaska has three active judgeships, currently filled by Chief Judge Timothy Burgess, a Bush appointee, Judge Sharon Gleason, an Obama appointee, and Judge Joshua Kindred, a Trump appointee. Of the three, only Burgess is eligible for senior status. He is, however, unlikely to move to senior status before his term as Chief ends in 2022.

Arizona

The District of Arizona is one of the most overworked courts in the country, with heavy caseloads. Luckily, after years of chronic vacancies, all judgeships on the court are currently full, with one Bush appointee, seven Obama appointees, and five Trump appointees serving. No vacancy is expected before 2024, when Chief Judge Murray Snow, and Judges Douglas Rayes and James Soto all become eligible for senior status. However, if Judge Andrew Hurwitz moves to senior status upon eligibility next year, Judge Rosemary Marquez may be selected to replace him, opening up a seat for Biden to fill.

California

The nation’s most populous state also has the most district court judgeships serving its population, sixty one, divided into four districts: the Central, Northern, Eastern, and Southern. Despite the high numbers, California’s district courts are, if anything, understaffed in proportion to their caseload. This is particularly true now, as the courts have a whopping 18 vacancies with an additional two set to open next year. California Senators Dianne Feinstein and Alex Padilla have each claimed to have sent recommendations to the White House, but it’s an open question when nominees will hit the senate.

The largest of the four districts is the Central, based in Los Angeles. Currently, the court is served by 22 active judges, eight appointed by Bush, seven by Obama, four by Trump, two by Clinton, and one by Reagan. There are also six vacancies, with the oldest going back to 2015. Additionally, a seventh vacancy will open in February 2022 when Judge Virginia Phillips moves to senior status. Of the remaining 21 judges, nine are eligible for senior status: Reagan appointee Stephen Wilson; Clinton appointee David Carter; Bush appointees Percy Anderson, John Walter, Gary Klausner, Dale Fischer, Otis Wright, and George Wu; and Obama appointee John Kronsdadt. This makes future vacancies on the court fairly likely.

While the Sacramento based Eastern District is, with six judgeships, the smallest in California, it is also severely overworked. This is particularly true as it is currently having only four active judges carry the burden as the remaining two seats are vacant. Unless judges are confirmed swiftly, the situation will get worse next year when Judge John Mendez takes senior status.

The Bay area based Northern District of California has eleven active judges serving, all appointees of President Obama. An additional three seats are vacant. While none of the active judges is eligible for senior status, two, Edward Davila and Edward Chen, will become eligible for senior status next year and may move then.

Finally, the San Diego based Southern District of California is the hardest hit of all the California courts when it comes to vacancies, as seven of the thirteen judgeships are vacant. Of the remaining six active judges, one, Judge Janis Sammartino, is eligible for senior status and could choose to make the move.

Hawaii

The four judgeship District of Hawaii does not currently have any vacancies and no new vacancies are expected, with the first judges to hit senior status eligibility doing so in 2024.

Idaho

One of only two states to be served by just two active judgeships, Idaho is currently at half-capacity with Judge B. Lynn Winmill’s move to senior status in August. Winmill gave plenty of notice of his intention to take senior status, and the Idaho Democratic Party recommended four candidates to replace Winmill in March: Idaho Falls attorney DeAnne Casperson; former U.S. Attorney Wendy Olson; and Boise attorneys Keely Duke and Deborah Ferguson. Idaho Senator Mike Crapo indicated that his office has had many “preliminary” conversations regarding the judgeship with the White House and that they are working to find a mutually agreeable nominee.

Montana

While none of the three active judges in the District of Montana, all Obama appointees, are eligible for senior status, Judge Dana Christensen becomes eligible for senior status in December and may choose to make the move at that time.

Nevada

The U.S. District Court for the District of Nevada has two vacancies among its seven judgeships, with the remaining five judges all appointed by President Obama and years from taking senior status. The two pending vacancies on the District Court, one in Reno and one in Las Vegas, are both over three years old. Nevada Senators set up judicial nomination commissions to fill the vacancies with application deadlines of February 28, 2021. Since then, there has been no public recommendations made and the White House has not yet sent any nominations to the Senate.

Oregon

The U.S. District Court for the District of Oregon has six active judgeships: three Obama appointees, and one appointee each from Clinton, Bush, and Trump. The Court will have a vacancy open on December 27 of this year when Bush appointed Judge Michael Mosman takes senior status. Clinton appointee Ann Aiken is also eligible for senior status but has made no indication that she intends to take it. So far, there has not been any word on recommendations by Oregon Senators to replace Mosman.

Washington

After an agreement over judicial nominations fell apart during the Trump Administration, Washington’s district courts saw no confirmation over the last four years. As a result, the Western District of Washington now has five vacancies out of seven active judgeships, with one future vacancy set to open on the Eastern District. So far, nominees have been submitted to the Senate for three vacancies on the Western District, and for the lone Eastern District vacancy. All three Western District nominees are awaiting final Senate votes, with Judge David Estudillo being teed up for confirmation in September. So far, there is no timeline on nominees for the remaining two vacancies.

Additionally, the two active judges remaining on the Western District: Judges Richard Jones and Ricardo Martinez, are also eligible for senior status, so additional vacancies may open as the current ones are filled.

Tenth Circuit

Court of Appeals

The Tenth Circuit, based in Denver, is considered a moderate court, evenly divided between five Republican and five Democrat appointed judges, with two vacancies. The Senate is poised to confirm public defender Veronica Rossman to fill a Colorado vacancy on the court in September. The other vacancy, based in Kansas, is still without a nominee.

Of the remaining judges on the court, only Judge Harris Hartz, appointed by President George W. Bush, is eligible for senior status. While Chief Judge Timothy Tymkovich, another Bush appointee, will reach eligibility for senior status in November, he is unlikely to take senior status without serving out his term as Chief in 2022. Additionally, Judge Scott Matheson, an Obama appointee, becomes eligible for senior status at the end of 2022, and may also make the move.

Colorado

The seven judgeship District of Colorado is undergoing a significant transformation, with Biden already having appointed Judge Regina Rodriguez to the court, and having nominated Charlotte Sweeney for a second vacancy. A third vacancy is set to open in 2022 when Judge Christine Arguello moves to senior status. The only other vacancy that could open this Congress could occur when Judge William Martinez reaches eligibility for senior status at the end of 2022.

Kansas

The District of Kansas currently has all six judgeships filled, although Judge Julie Robinson, a George W. Bush appointee, is set to take senior status on January 14, 2022. So far, there has been no public application period or recommendation noted for Robinson’s seat. Judge Eric Melgren, another Bush appointee, also reaches eligibility in 2022 but has so far made no indications of taking senior status.

New Mexico

The seven-judgeship District of New Mexico is one of the busiest courts in the country. The Court currently has two vacancies, with a third set to open with Judge Martha Vazquez’s move to senior status next year. New Mexico Senators Martin Heinrich and Ben Ray Lujan submitted nominees to fill the two existing vacancies in January 2021, but so far the White House has only nominated one nominee: Margaret Strickland. Strickland is currently the longest pending judicial nominee waiting on the Senate floor, and, although Majority Leader Schumer filed cloture on three pending nominees before the August recess, he skipped over Strickland.

The situation could potentially become worse as Judge James Browning is also eligible for senior status, although he has not indicated that he will take it. If Browning and Vazquez vacate their seats, this could leave the District of New Mexico with less than half of its allotted judgeships full.

Oklahoma

The Oklahoma District Courts currently have one vacancy, from Judge John Dowdell’s early move to senior status earlier this year. So far, no public process has started to replace Dowdell.

Utah

The five judgeship District of Utah, composed of three Obama appointees and two Trump appointees, will see a vacancy open next year when Judge David Nuffer takes senior status. So far, there is no public replacement process for Judge Nuffer.

Wyoming

The three-judge District of Wyoming already has a vacancy pending, as Judge Nancy Freudenthal has announced her intention to take senior status on June 1, 2022. As Wyoming has no Democrats in the Congressional delegation, the White House will have to work with Republican Senators John Barrasso and Cynthia Lummis. During the Obama Administration, Barrasso endorsed and supported Fredeunthal and Chief Judge Scott Skavdahl, but it’s unclear if a similar accommodation would be reached today. Additionally, Judge Alan Johnson, who is 82, and is one of the few actively serving Reagan appointees, may also take senior status, opening up a second vacancy and potentially opening the door to a one-for-one deal.

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. This week, we focus on the South.

Fifth Circuit

Court of Appeals

The Fifth Circuit Court of Appeals is arguably the most conservative court of appeals in the country. Many of the conservative legal movement’s most outspoken jurists, from Judge Edith Jones to Judge James Ho, sit on this court. The Fifth Circuit includes six nominees appointed by President Trump, four appointed by President Bush, three by President Obama, and two each by Presidents Reagan and Clinton. Of the judges, six are currently eligible for senior status: Reagan appointees Jones and Jerry Smith, Clinton appointees Carl Stewart and James Dennis, and Bush appointees Priscilla Owen and Leslie Southwick. Of the six, only Dennis, the Fifth Circuit’s oldest active judge and one of the few liberal voices on the court, has announced a move to senior status. So far, no nominee has been announced to replace Dennis.

The other judges on the court, with the exception of Stewart and potentially Southwick, are unlikely to take senior status anytime soon. Another of the court’s liberals, Judge James Graves of Mississippi, hits eligibility for senior status next year and may take so at that time.

Louisiana

Louisiana has three judicial districts: the Eastern; Middle; and Western. The twenty-two active judgeships across the three courts are all currently filled, although one will open on the Western District when Judge Elizabeth Erny Foote takes senior status in January 2022. No nominee has been put forward to replace Foote and Biden may seek to work with Louisiana Senators with a package of nominees to include U.S. Attorney picks and Dennis’ replacement.

Additional vacancies are likely, particularly on the Eastern District. Of the twelve active judges on the Eastern District, six are currently eligible for senior status: Martin Feldman, Sarah Vance, Eldon Fallon, Carl Barbier, Jay Zainey, and Lance Africk. Of the six, Feldman and Fallon, who are both over eighty, are judges to watch. Additionally, Chief Judge Maurice Hicks on the Western District, who will have to step down as Chief next year, is another possibility for senior status.

Mississippi

While Mississippi currently has no judicial vacancies, additional retirements are possible. Out of the nine active judges in Mississippi, three are eligible for senior status: Judges Michael Mills and Sharion Aycock on the Northern District; and Judge Henry Wingate on the Southern District. While no other judge reaches eligibility before 2028, Judge Carlton Reeves for the Southern District may be considered for elevation if either Southwick or Graves moves to senior status on the Fifth Circuit.

Texas

Texas’ four judicial districts entered the Trump Administration with eleven judicial vacancies, and, as a result of a flood of new confirmations, are almost entirely full. There is only one current judicial vacancy in Texas: on the Western District from the death of Judge Philip Martinez. Additionally, one future vacancy is expected next year when Judge Vanessa Gilmore moves to senior status in the Southern District. So far, there has not been any public movement in Texas towards recommendations to fill the vacancies.

Additional vacancies are likely as a number of judges are eligible for senior status. Currently, the possibilities include: Marcia Crone on the Eastern District; Sam Lindsay, Barbara Lynn, James Kinkeade and Jane Boyle on the Northern District; Lee Rosenthal, Ricardo Hinojosa, Lynn Hughes, Keith Ellison, and Andrew Crane on the Southern District; and Orlando Luis Garcia, Samuel Biery, Earl Yeakel, Kathleen Cardone, and Frank Montalvo on the Western District. Furthermore, next year, Judge David Godbey on the Northern District will reach eligibility for senior status.

Eleventh Circuit

Court of Appeals

The Atlanta based Eleventh Circuit, despite a more equitable party division, has a reputation almost as conservative as its neighbor to the West. An influx of Trump and Obama appointees (75% of the court has served less than ten years) leaves few judges who are eligible for senior status. One of the two judges who are, Judge Beverly Martin, is retiring in September. So far, there has been no nominee to replace Martin, who is one of the court’s few liberals. Judge Charles Wilson, the other judge eligible for senior status, is another liberal, ensuring that the conservative tilt of the court is unlikely to change anytime soon.

Alabama

All the states under the Eleventh Circuit are divided into a Northern, Middle, and Southern District. In Alabama’s case, the three courts together have fourteen judgeships: eight Trump appointees; three Bush appointees; two Obama appointees; and one vacancy. The lone vacancy is on the Middle District, vacated by Judge Andrew Brasher’s elevation to the Eleventh Circuit. Trump nominated Solicitor General Edmund LaCour to fill this seat, but LaCour was blocked by Sen. Doug Jones, and the vacancy is still pending. So far, there has been no nominee to fill this vacancy.

Additional vacancies are unlikely as no judge is eligible for senior status until Judge Scott Coogler reaches it in 2024.

Florida

Between the Northern, Middle, and Southern Districts of Florida, there are thirty seven judgeships, and two vacancies. The two currently pending vacancies are both on the Southern District of Florida. As Florida has two Republican Senators, Sen. Marcio Rubio and Florida’s Democratic House Delegation set up rival nominations commissions for the vacancies. Rubio recommended attorneys David Leibowitz and Detra Shaw-Wilder to fill the vacancies in July. The Democratic JNC also recommended Shaw-Wilder alongside state court Judges Samantha Feuer, Ayana Harris, and Miguel De La O, federal magistrate Shaniek Maynard, and federal public defender Michael Caruso. Having been recommended by both committees, it is likely that Shaw-Wilder will be nominated. However, it is unclear who the second nominee will be.

Additional vacancies are possible. Out of the thirty five active judges serving, seven are currently eligible for senior status: H.W. Bush appointees Steven Merryday and Michael Moore, Clinton appointees William Dimitrouleas and Donald Middlebrooks; and Bush appointees Timothy Corrigan, Marcia Cooke, and Jose Martinez.

Georgia

The Northern, Middle, and Southern Districts of Georgia have a total of eighteen judgeships: six appointees each of Presidents Obama and Trump; and four appointees of President Bush. There are also two vacancies on the Northern District of Georgia. Georgia Senators Raphael Warnock and Jon Ossoff began soliciting nominees for the vacancies early this year, with an application deadline of March 17, 2021. While no names have become public, it is likely that recommendations have already made their way to the White House. Additional vacancies are unlikely before 2023, unless Judge Leslie Abrams is tapped for the Eleventh Circuit to replace Martin.

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. Last week, we covered the states in the Northeast. We move on to the Atlantic Coast.

Third Circuit

Court of Appeals

The fourteen judgeship Third Circuit, covering the states of Delaware, New Jersey, and Pennsylvania, has ping-ponged between narrow majorities of Republican-appointed and Democrat-appointed judges over the last two decades. Nonetheless, it has maintained a reputation for collegiality and moderation. Currently, the court has four judges appointed each by Presidents Bush, Obama, and Trump and two judges appointed by President Clinton. The Court has one vacancy for President Biden to fill, to be vacated by Clinton-appointee Theodore McKee upon confirmation of his successor. With McKee’s announcement coming just a couple of weeks ago, a nomination will likely not be made until October or November at the earliest.

Other than McKee, two judges are currently eligible for senior status. Chief Judge D. Brooks Smith, a moderate appointed by President Bush, has been a federal judge since 1988, has been eligible for senior status since 2016, has announced his selection as Penn State Law’s jurist in residence, and will end his tenure as Chief on December 4, 2021 (his 70th birthday). All of these signs suggest that Smith will either take senior status or retire upon the conclusion of his term as Chief, but this is, by no means, guaranteed. The other eligible judge is Clinton-appointee Thomas Ambro, who has made no indications that he plans to vacate his Delaware-based seat.

Furthermore, two more judges become eligible for senior status next year. Bush appointee Kent Jordan, based in Delaware, becomes eligible for senior status on October 24, 2022, and may choose to vacate his seat at that time. Obama appointee Joseph Greenaway has been a federal judge since 1996 and may choose to vacate his New Jersey based seat upon eligibility on November 16, 2022. Either way, it would not be surprising if an additional vacancy opened on the Third Circuit before the end of the 117th Congress.

Delaware

In theory, the district court in the President’s home state is unlikely to see any vacancies this Congress. However, both Judges Leonard Stark and Maryellen Noreika have been proposed as nominees to the Federal Circuit, and both could also be considered for the Third Circuit if Ambro or Jordan moved to senior status. If either or both are nominated, the resulting vacancies could allow Biden to expand his impact on the local district court.

New Jersey

Due to a standoff between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no judges were appointed to the District of New Jersey in the last four years. As a result, when Biden came into office, six out of the seventeen judgeships on the court were vacant. Since then, Biden has filled two of the vacancies, with Judges Julien Neals and Zahid Quraishi. Two more nominees, Christine O’Hearn and Judge Karen Williams, are currently pending on the Senate floor, while two vacancies, both in Newark, remain without nominees.

Of the eleven active judges on the court, only one, Chief Judge Freda Wolfson, is eligible for senior status, although Judge Noel Hillman will hit eligibility on December 22 of this year. Wolfson, a Democrat appointed to the Court by President Bush, may choose to serve out her term as Chief (in 2024), while Hillman, another Bush appointee, has made no announcements about taking senior status.

Pennsylvania

Pennsylvania is divided into three district courts: the Eastern District, based in Philadelphia; the Western District, based in Pittsburgh; and the Middle District, based in Harrisburg. Traditionally, Pennsylvania senators divided judicial nominations on a 3-1 ratio, with the White House appointing one judge of the opposing party for three of their own party. Examples of cross-party appointments include Judges Yvette Kane and R. Barclay Surrick under President Clinton; Judges Legrome Davis, Timothy Savage, David Cercone, and C. Darnell Jones under Bush; Judges Matthew Brann, Jeffrey Schmehl, Edward Smith, and Jerry Pappert under Obama; and Judges Susan Baxter, Robert Colville, and John Milton Younge under Trump. This tradition is expected to continue under Biden.

Currently, there are four vacancies on the Eastern District, and one vacancy on the Middle District. Pennsylvania Senators Bob Casey, a Democrat, and Pat Toomey, a Republican, opened applications for the Eastern District in January 2021 with a February 8 application deadline. They similarly opened applications for the Middle District vacancy in June 2021 with an application deadline of July 8, 2021. In the past, Casey and Toomey refrained from making their recommendations public, and, as such, no names are expected to come to light until announced by the White House.

In addition to the current vacancies, a number of judges are eligible for senior status. Specifically, Chief Judge Juan Sanchez, and Judges Cynthia Rufe, Gene Pratter, and Paul Diamond on the Eastern District are currently eligible to take senior status. Additionally, in October, Judge Robert Mariani on the Middle District becomes eligible for senior status. Judge Christopher Conner of the Middle District also reaches eligibility on October 25, 2022. In contrast, the Western District is unlikely to see any vacancies open this Congress, as the earliest any judge reaches eligibility is in 2024.

Fourth Circuit

Court of Appeals

The Fourth Circuit Court of Appeals used to have a reputation as one of the most conservative courts in the country. However, after President Obama named seven judges to the court in his two terms, the Court underwent an ideological transformation. Today, the Court frequently divides into a 9-6 liberal-conservative divide in en banc votes. The Fourth Circuit currently is composed of Judge J. Harvie Wilkinson, a Reagan appointee; Judge Paul Niemeyer, a George H.W. Bush appointee; Judges Diana Motz, Robert King, and Roger Gregory, Clinton appointees (although Gregory was confirmed as a George W. Bush appointee, he was recess appointed to the Court by President Clinton); Judge Steven Agee, a George W. Bush appointee; Judges Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris, Obama appointees; and Judges Julius Richardson, Marvin Quattlebaum, and Allison Rushing, Trump appointees.

Of the 15 judges on the court, eight are currently eligible for senior status, and a ninth becomes eligible next year. However, despite this, only one vacancy has been announced so far on the court, with Keenan taking senior status on August 31, 2021. Biden has already nominated Virginia Solicitor General Toby Heytens to replace Keenan. After a smooth confirmation hearing, Heytens is expected to reach the Senate floor in September, with a final confirmation vote by the end of October. Given the sheer number of Fourth Circuit judges who are eligible for senior status, it would not be surprising to see an additional vacancy or two open up before the end of the 117th Congress.

Maryland

The U.S. District Court for the District of Maryland has already undergone a change in the current Administration, as Biden has named two judges to the court: Lydia Griggsby and Deborah Boardman. In addition, the ten judgeship court has a third vacancy that awaits a nomination: with Judge Ellen Lipton Hollander taking senior status upon confirmation of a successor. A fourth vacancy could potentially open next year as Judge Paul Grimm becomes eligible for senior status on December 6, 2022.

North Carolina

While the three judicial districts that cover North Carolina (the Eastern, Middle, and Western) do not currently have any vacancies, two judges are eligible for senior status, Judge Terrence Boyle on the Eastern District, an appointee of President Reagan, and Judge Max Cogburn, an appointee of President Obama. As such, there remains the possibility that additional vacancies may open in North Carolina this Congress.

South Carolina

The U.S. District Court for the District of South Carolina currently lacks judicial vacancies and only has one judge eligible for senior status, George H.W. Bush appointee David Norton. However, a vacancy may also open next year if Judge Juliana Michele Childs is elevated to the Fourth Circuit or if Judge Richard Gergel takes senior status upon reaching eligibility.

Virginia

Divided between the Eastern and Western Districts, Virginia is served by 15 active judgeships. Currently, Virginia has three Clinton appointees, one Bush appointee, five Obama appointees, and four Trump appointees, with the remaining two judgeships vacant. Thanks to swift recommendations made by Virginia Senators, both vacancies have nominees: federal prosecutor Patricia Giles; and Magistrate Judge Michael Nachmanoff. However, an additional two vacancies are scheduled to open later year, when Judges James Jones and John Gibney move to senior status. Earlier this month, Senators Mark Warner and Tim Kaine recommended U.S. Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott as prospective nominees to replace Jones on the Western District. Warner and Kaine also accepted applications to fill Gibney’s seat with a deadline of July 19, but no recommendations have been made yet.

Additional vacancies are also possible, as Judges Leonie Brinkema and Raymond Jackson on the Eastern District are eligible for senior status.

West Virginia

Despite being a small state, West Virginia is covered by two judicial districts, the Northern and Southern. Between them, the two districts have two judges appointed each by Presidents Clinton, Bush, Obama, and Trump. Of those judges, Judges Joseph Goodwin and Robert Chambers, the two Clinton appointees, and Judge John Bailey, a Bush appointee, are currently eligible for senior status. Additionally, Judge Irene Berger, an Obama appointee, joins them in eligibility next year. Given that fact, it would not be surprising if one or more vacancies opened in West Virginia before the end of the 117th Congress.

D.C. Circuit

Court of Appeals

The oft-described “second highest court in the country”, the D.C. Circuit is considered by many to be the first among equals in the federal Courts of Appeal. As currently composed, the Court has eleven active judges, four appointed by President Obama, three by President Trump, two by President Clinton, and one each by Presidents George H.W. Bush and Biden. While Biden has already named Judge Ketanji Brown Jackson to replace now-Attorney General Merrick Garland, he has a second vacancy to fill. Judge David Tatel, who has served on the court since 1994, announced in February his intent to take senior status upon the confirmation of a successor. So far, no nominee has been put forward to replace Tatel, unusual given that the D.C. Circuit does not require negotiating with home state senators before making a nomination.

Other than Tatel, two judges on the D.C. Circuit are currently eligible for senior status: Bush appointee Karen Henderson; and Clinton appointee Judith Ann Wilson Rogers. Both have been eligible for years and have declined to make the move under Presidents of both parties. While either could take senior status this Congress, it would not be surprising to see both continue to be active for a few more years.

Additionally, there is always the possibility that, if a vacancy opens on the U.S. Supreme Court, Jackson is elevated and Biden gains the opportunity to fill her seat and maintain the court’s narrow liberal majority.

District of Columbia

The U.S. District Court for the District of Columbia is the sole trial court that feeds into the D.C. Circuit. It is also a court of many firsts: the first Article III trial court to have a female judge, and the first Article III trial court to have an African American judge. Today, the 15-member court has two vacancies, both with pending nominees on the Senate floor: D.C. Superior Court Judge Florence Pan; and civil rights attorney Jia Cobb. Of the remaining judges on the court, only one, Judge Colleen Kollar-Kotelly, is eligible for senior status. Barring any moves on her part, additional vacancies are unlikely.

Federal Circuit

Court of Appeals

The Federal Circuit is the newest kid of the block in terms of federal courts, having only been created in 1982. Unlike other federal courts of appeal, which hear appeals from geographic areas, the Federal Circuit is specialized by subject matter, hearing patent cases, as well as appeals from a variety of Article I and Article III tribunals. It is also the only circuit not to see a vacancy during the Trump Administration. However, so far, only eight months into the Biden Administration, it has already seen two. The first, opened by Judge Evan Wallach’s move to senior status in May, has already been filled by Judge Tiffany Cunningham. The second will open next March when Judge Kate O’Malley, an Obama appointee like Wallach, will retire. No nominee has been named for the second vacancy so far.

There is significant potential for additional turnover on the Federal Circuit. Setting aside O’Malley, another four judges on the Circuit are eligible for senior status: Judges Pauline Newman, Alan Lourie, Timothy Dyk, and Sharon Prost. Three of the four are over eighty years old, with one, Judge Newman, being 94 (and the oldest active judge on the Federal Courts of Appeal). Furthermore, Judge Jimmie Reyna, an Obama appointee, becomes eligible for senior status next year, creating another potential vacancy. To be fair, it is unlikely that all of these seats will open. However, the last time that the Federal Circuit had so many judges poised for senior status eligibility, in the late 2000s, then President Obama named seven judges to the Court. For his part, Biden already has the opportunity to name two and will likely get at least one more vacancy before the end of the 117th Congress.

Court of International Trade

The United States Court of International Trade adjudicates civil actions arising from customs and trade laws, and its cases feed into the Federal Circuit on appeal. The Court is composed of nine judges, and, by statute, no more than five of those can be of the same political party. As a result, Presidents frequently make cross-party appointments to avoid violating this threshold. Currently, the court has four Obama appointees, three Trump appointees, and two vacancies. There are currently two-cross party judges on the court: Obama appointee Jennifer Choe-Groves; and Trump appointee Timothy Reif. Thus, Biden cannot fill both vacancies on the court with Democrats. Of the judges serving on the bench, none is close to eligibility for senior status, which makes it unlikely that additional vacancies will open on the Court in the next year.

Court of Federal Claims

After years of chronic shortages, a surge of confirmations late in the Trump Presidency brought the Court of Federal Claims down to just three vacancies by the time Biden was sworn in. Since then, a fourth vacancy has opened with Judge Lydia Griggsby’s confirmation to the District of Maryland. Of the four vacancies, two have nominees: Armando Bonilla and Carolyn Lerner. With an overwhelming majority of the court having been appointed over the last two years, no new vacancies are expected on the court after the current ons are filled.

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We start with the states in the Northeast.

First Circuit

Court of Appeals

With just six active judgeships, the First Circuit is the smallest court of appeals in the nation, and the only geographically based appellate court that President Trump did not name a single judge to. The First Circuit tends to cycle between periods of significant turnover and periods of relative stability. For example, President George H.W. Bush named four judges to the court in four years in office. President Clinton then named two over eight years and President George W. Bush named just one in his eight. President Obama then replaced half the court in his two terms, followed by President Trump who named none.

Today, the court has five active judges: one appointed by Clinton; one by Bush; and three by Obama. A sixth judgeship, vacated by the death of Judge Juan Torruella last year is currently vacant, with a nominee, U.S. District Judge Gustavo Gelpi, waiting for a final confirmation vote on the Senate floor. However, a second vacancy is already teed up as the Rhode Island based Judge Ojetta Rogeriee Thompson is taking senior status on December 31, 2021. Rhode Island senators have already set up a selection process with the deadline set on August 4. This timeline could yield a new nominee by October 2021 and potentially even a confirmation by the end of the year.

More vacancies are possible this Congress. Judge Sandra Lea Lynch, appointed by President Clinton, has been eligible for senior status since 2011. Chief Judge Jeffrey Howard, the sole Republican appointee on the court, is also eligible for senior status but will likely stay active until his term as Chief concludes next year. However, even if neither moves to senior status, Biden will still have a chance to replace a third of the court.

Maine

The three judgeship District of Maine is unlikely to see much turnover this Congress, as the first judge to hit eligibility for senior status, Chief Judge Jon Levy, won’t hit it until 2024. His colleagues Nancy Torresen and Lance Walker have much longer to wait: until 2025 and 2037 respectively.

Massachusetts

The 13-judgeship District of Massachusetts is currently three judges short, with a nominee, Judge Angel Kelley, pending to the oldest vacancy. Kelley’s nomination was the product of a January 2021 convening of a Bipartisan Advisory Committee by Massachusetts Senators Elizabeth Warren and Ed Markey. The Committee was reconvened in March to produce nominees to replace Judge William Young, who was leaving active status. Presumably, the Committee has recommended candidates to fill the remaining vacancies on the court, which means that nominees may be forthcoming in the Fall.

Of the remaining ten active judges on the court, four are already eligible for senior status and a fifth, Judge Timothy Hillman, becomes eligible next year. As such, it is possible that more vacancies could open before the end of this Congress.

New Hampshire

The District of New Hampshire currently has one vacancy, opened by Judge Paul Barbadoro’s move to senior status on March 1. So far, there has not been a public announcement from New Hampshire’s senators on the selection process, and no nomination has been made.

Puerto Rico (not technically in the Northeast but covered under the First Circuit)

The District of Puerto Rico currently has one vacancy out of seven judgeships, but two others are poised to come open. Judge Gustavo Gelpi has been named to the First Circuit and is pending confirmation, and Judge Francisco Besosa has announced his intent to take senior status on January 1, 2022. The resulting three nominations, when they come, will encompass the largest turnover on the court since 2006 when Gelpi and Besosa were appointed. The third appointee from 2006, Judge Aida Delgado-Colon, is also eligible from senior status. If she so moved, Biden would have an opportunity to name a majority of judges on the court.

Rhode Island

Like it’s counterpart in Maine, the District Court for the District of Rhode Island has three judgeships, all of whom are not eligible for senior status this Congress. As such, no vacancies are expected this Congress unless Judge Mary McElroy, a longtime public defender and Democrat named to the court by Trump, is picked to replace Thompson on the First Circuit.

Second Circuit

Court of Appeals

The Second Circuit, based in New York, is one of the most prestigious court of appeals in the federal system. The Court, which has two vacancies, is closely divided ideologically. The active judges on the court are split 7-4 in favor of the court’s conservative wing, but this is mitigated by the senior judges, who sit frequently and include many prominent liberals. Biden has already named Judge Eunice Lee to the court and both the pending vacancies have nominees: voting rights attorney Myrna Perez and Vermont Supreme Court Justice Beth Robinson.

Setting aside Lee, the active judges on the Second Circuit include five appointees of President Trump (who are all years away from senior status), Chief Judge Debra Livingston (who is expected to serve out her term as Chief until 2027); and Obama appointee Raymond Lohier (who doesn’t hit eligibility until 2030). While it would be tempting to consider Judges Jose Cabranes and Rosemary Pooler, the last remaining of nine judges appointed to the Court by Bill Clinton, as likely moves to senior status, the judges (both octagenarians) have resisted senior status for years despite being eligible to do so. A more likely candidate to move to senior status is Obama-appointee Judge Susan Carney, who hits eligibility in September 2021.

Connecticut

The District of Connecticut currently has three vacancies out of eight judgeships. However, unlike most other states, all of Connecticut’s vacancies have nominees: U.S. Magistrate Judge Sarah Merriam; state judge Omar Williams; and federal prosecutor Sarala Nagala. The expected confirmation of the three this Fall would restore the court to a full complement of eight. However, Chief Judge Stefan Underhill is also eligible for senior status and may take it, creating an opportunity for a fourth appointment (It’s just as likely that Underhill serves out his term as Chief, which ends in 2025).

New York

One of only three states to be divided into four federal judicial districts, New York is currently bogged with a number of judicial vacancies. During the Obama Administration, Senators Chuck Schumer and Kirsten Gillibrand split up making recommendations to fill vacancies and each publicized names as they were sent to the White House. So far, Schumer has only made one district court recommendation public: voting rights attorney Dale Ho for the Southern District of New York (Ho has yet to be nominated).

Meanwhile, vacancies remain, with only the Western District of New York having a full complement of active judges. The Southern District of New York, one of the busiest courts in the country, is short four judges, with two of the vacancies dating back to 2018. The Eastern District of New York, despite having around half as many judgeships as its neighbor, also has four vacancies. The Northern District has only one vacancy, but, dating back to 2016, it’s one of the oldest vacancies in the nation.

Additionally, more vacancies may open in the coming year. Currently, three judges are eligible for senior status but have held off: Judge John Koeltl; Judge David Hurd; and Judge William Kuntz. Next year, three more become eligible: Judges Kiyo Matsumoto; Roslyn Mauskopf; and Glenn Suddaby.

Vermont

Vermont is one of only three states in the country to be served by only two district court judges (Idaho and North Dakota being the others). With both of Vermont’s judges a few years from eligibility for retirement, it is unlikely that any vacancies will open on the district court this Congress.