How President Trump will shape the federal courts

Second, as noted above, there will be a great many more judicial vacancies over the next four years. At this point, we don’t know when and where these vacancies will appear. For what it’s worth, I expect that the rate at which judges retire or take senior status will be affected by the caliber and qualifications of Trump’s initial judicial nominees. That is, sitting judges will feel more comfortable taking senior status and creating new vacancies if they feel confident that they will be replaced by qualified nominees. This may be particularly true for Republican appointees on the bench, insofar as we assume that judges prefer to be replaced by a president of the same party that appointed them, but I expect the qualifications of Trump’s nominees will influence the decisions of Democratic appointees as well.

Finally, Trump’s influence on the courts could be magnified if Congress decides to expand the size of the federal judiciary. There are some courts with tremendous backlogs that could use more judges, and others (such as the D.C. Circuit) that Republicans would like to “pack” (or, if your prefer, “unpack”) to offset the effects of Obama’s appointments and Sen. Harry Reid’s decision to invoke the nuclear option to facilitate nominations. There is a long history of partisan majorities seeking to create judicial positions for presidents of the same party to fill, so don’t be surprised if Republicans start talking about doing it, too. Indeed, such conversations have already begun.