The 19th Explains: How Trump’s impact on the federal judiciary could be different this time
Issues
This excerpt is from a piece that originally ran on January 3, 2025.
The Senate confirmed 235 of President Biden’s nominations to the federal judiciary — all lifetime positions, including one Supreme Court justice — beating Trump’s record and leaving the incoming president with only a small number of new judges to bring in. Biden also appointed more judges of color and more openly LGBTQ+ judges than any other president, expanding diversity on the federal bench after Trump’s nominations curtailed it.
Ethan Rice, senior attorney for Lambda Legal’s Fair Courts Project, pointed out that Trump had over 100 vacancies in the federal judiciary to fill when he first took office — and there simply will not be as many spaces for him to fill this time. Trump will enter office with 40 judicial nominations to fill and about 35 judges who will transition to senior status handling fewer cases, said Jake Faleschini, justice program director at the Alliance for Justice.
Maya Sen, a Harvard University researcher who has testified before Congress and Biden’s Presidential Commission on the U.S. Supreme Court, said she believes Trump was more cautious and receptive to feedback on judicial nominees during his first term. But in observing his statements throughout the 2024 presidential campaign and his Cabinet picks so far, Sen said she thinks Trump may be “less encumbered by what the Washington, D.C. elite establishment thinks” in the second term.
Trump is reportedly expected to rely less on the Federalist Society for guidance when nominating judges — and to prioritize those who are personally loyal to him.
One key concern for Trump’s critics is whether the president-elect and Senate Republicans might abandon rules and traditions to push through judicial nominations faster. For years, the “blue slip” process was used to allow senators from the home state of judicial nominees to signal their support or disapproval. Without a home-state senator’s support, nominations could be blocked. But during Trump’s term, Republicans confirmed at least a dozen circuit court nominees who did not receive a senator’s blue slip of support. It is unclear whether Republicans will follow a similar path in the new presidency, Faleschini said. It may ultimately depend on what they view as the cost-benefit of going against tradition.