Numerous federal judges may retire 'in very short order' depending on who wins the election

05 October 2024

Currently, there are only a few dozen vacancies to be filled across the entire federal judiciary. But there are reportedly scores of federal judges who may soon leave their posts depending on the outcome of the November election.

NBC News reported that out of the 890 Article III federal judgeships — which includes U.S. district and circuit court judges serving lifelong terms as well as the nine Supreme Court judges — there are just 43 open positions throughout the country. This means the next president will have the fewest judicial vacancies of any incoming administration in decades.

But the number of vacancies in the federal judiciary may jump much higher depending on which party wins the White House and the U.S. Senate next month. According to Thomas Jipping, who is a senior legal fellow at the far-right Heritage Foundation (the organization behind Project 2025), there is a "dynamic process" to judges weighing retirement, and that many may announce their decision after the inauguration of the next president on January 20, 2025.

"On the date that he or she raises their hand, it might be a particular number, but in very short order, the number of vacancies available to be filled will increase, possibly quite significantly," Jipping said.

Senate Majority Leader Chuck Schumer (D-New York) is reportedly working hard behind the scenes to get judges appointed by President Joe Biden confirmed prior to the election. The New York Democrat told NBC that there would likely be confirmation votes after the election as well — particularly as some independent members of the Senate who caucus with Democrats, like Sens. Joe Manchin (I-West Virginia) and Kyrsten Sinema (I-Arizona) are preparing to exit the body before the next Congress gavels in.

"We are going to use the lame duck to confirm judges. And we’re going to do everything we can to get as many judges done as possible, trying to overcome the Republican obstruction," Schumer said.

Former President Donald Trump has suggested that he would focus on appointing judges to vacant positions who were in their thirties, so they could be able to shape the courts for decades. He told a National Rifle Association gathering that he prefers younger judges who can be in their posts "for 50 years or 40 years."

One process that could hamper Schumer's efforts to get Biden-appointed judges confirmed is Senate Judiciary Committee chairman Dick Durbin's (D-Illinois) adherence to so-called "blue slips" for Article III judge appointments. Under the blue slip procedure, a judge's nomination is not advanced through the committee until both of that judge's home-state senators submit "blue slips" to the chairman indicating their support.

The hyper-partisan climate in Washington, D.C. has upended the blue slip process for U.S. district judges. One recent example of this was Biden withdrawing his nomination of Oktibbeha County, Mississippi District Attorney Scott Colom for a vacancy in the Northern District of Mississippi. Colom's nomination was held up by Sen. Cindy Hyde-Smith, who refused to submit a blue slip in favor of Colom.

Durbin does not currently use the blue slip process for higher-level circuit court appointees, though he indicated to Politico earlier this year that he would be in favor of doing so in the future. The Illinois senator said any changes to the procedure wouldn't happen until the next Congress gavels into session on January 3, 2025.

Click here to read NBC's report in full.

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