A shift is underway in the balance of power within the federal judiciary. Two seasoned judges, Jeffrey S. Sutton of the Sixth Circuit and Debra Ann Livingston of the Second Circuit, have recently announced their intention to assume senior status – a move towards semi-retirement that simultaneously opens the door for new appointments.
These vacancies present a significant opportunity for the current President to reshape the courts. The Second Circuit, in particular, carries substantial weight, handling critical cases involving finance, national security, and complex civil disputes. A conservative appointment to this court could have far-reaching consequences.
The pace of judicial appointments differs markedly from the President’s first term. While 26 federal judges were appointed last year, this contrasts with 39 appointments made during the previous administration’s initial year, and 12 under the administration before that. However, the current rate of appointments is actually accelerating compared to the earlier period.
A key factor is the limited number of openings at the appeals court level. The most coveted positions are proving harder to fill, and resistance from opposing parties is proving more steadfast. This reality suggests a less dramatic impact on the courts this time around, a departure from the substantial changes seen during the first term.
The landscape of vacancies has drastically changed. Over 100 judicial positions were empty when the current President first took office in 2017, a stark contrast to the approximately 40 vacancies available now. This difference underscores the challenges in replicating the scale of judicial appointments achieved earlier in the term.
Historically, the President appointed an unprecedented 12 appeals court judges in 2017 – a number exceeding any president’s first year since 1945. However, only six such appointments have been made during the second term thus far, highlighting the tightening constraints.
The contrast in overall appointments is also notable. Over four years, the previous administration appointed 228 judges, while the current administration has appointed 228. However, the previous administration appointed 54 appeals court judges compared to the current administration’s 45, and secured three Supreme Court justices against the current administration’s one.
The push to influence the Supreme Court was particularly evident during the previous administration, with a concerted effort to persuade Justice Stephen Breyer to retire in 2022. This culminated in an unusual move – the confirmation hearings for a potential successor were held even before Breyer officially stepped down.
One moment from the confirmation hearings sparked considerable debate. When asked to define the word “woman,” the nominee responded she could not, stating she was “not a biologist.” This exchange, along with a disagreement regarding inherent physical differences between men and women, became a focal point of discussion.
These unfolding events demonstrate the intense scrutiny and political maneuvering surrounding judicial appointments, and the lasting impact these decisions have on the interpretation of law and the direction of the nation.
