How Trump and Senate Republicans Could Reshape the Federal Courts of Appeals, Part II

Welcome back to the second part of our two-part series looking at what President Donald Trump can do to alter the makeup of the powerful regional courts of appeals during his second term. In the first installment, we previewed the D.C. Circuit and the First through the Fifth Circuits. Up next: the Sixth through Eleventh Circuits.

(I’m not covering the Federal Circuit given its limited, specialized jurisdiction. Sorry, patent nerds!)

Sixth Circuit Court of Appeals

During his first term, Trump wasted little time transforming the Sixth Circuit, which runs from Michigan’s Upper Peninsula to the Tennessee Valley. He increased and reinforced the court’s conservative majority by replacing five members of its old guard—including three in his first year—and flipping one seat that then-Senate Majority Leader Mitch McConnell had held open for nearly four years. 

Had they lived further south, many of Trump’s appointees would have fit nicely on the Fifth Circuit. There’s the guy who went on Fox News to promote his fawning Clarence Thomas biography (Judge Amul Thapar), the anonymous blogger who compared abortion to slavery (Judge John Bush), and the white guy named Chad (Judge Chad Readler). 

Trump’s opportunities this time around will be fewer, but similar in kind. There is just one announced future vacancy—for now, anyway: Back in January 2024, Judge Jane Branstetter Stranch, appointed by President Barack Obama in 2010, informed President Joe Biden that she would go senior when a successor was confirmed. That never happened, as Biden’s nominee to replace Stranch, her former law clerk Karla Campbell, was another casualty of Senate Democrats’ year-end “deal” to bring Biden’s judicial appointments to an early close. To date, Stranch has not rescinded that conditional retirement plan, but she can still do so to prevent Trump from appointing her successor. 

There are no other vacancies on the 16-member court. One Republican appointee—Judge Richard Griffin—is currently eligible to take senior status, and another—Chief Judge Jeffrey Sutton—will be eligible later this year. Sutton is a steadfast conservative, but his term as chief runs through mid-2028, and he’s unlikely to give up that gig before then. Sutton also may not be interested in doing Trump any favors after Trump repeatedly left him off his first-term Supreme Court shortlists. (A possible explanation for this snub: Sutton had the audacity to uphold the Affordable Care Act’s individual mandate back in 2011.) 

Seventh Circuit

The ideological makeup of the Chicago-based Seventh Circuit has shifted back and forth during the last two presidencies. Trump appointed five judges, including now-Justice Amy Coney Barrett, and flipped two seats, leaving the 11-member court with just two Democratic appointees in 2021. Then, Biden appointed another five judges and flipped three seats of his own, leaving things much more evenly divided: Currently, six of the court’s judges were appointed by Republicans and five by Democrats. 

Barring a surprise retirement or untimely death, that’s exactly where things will stay. The court has no current vacancies, and two Republican appointees are retirement-eligible. One is Judge Frank Easterbrook, who has been serving on the court since 1985 but is only 76. The other is Chief Judge Diane Sykes, a fervent conservative who has several more years as chief. No other judges will be retirement-eligible until 2030.

Eighth Circuit

The Fifth Circuit may be the most conservative federal appeals court, but no federal appeals court boasts a larger Republican majority than the Eighth Circuit, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, and the Dakotas. Ten of the court’s 11 active judgeships (and 11 of 12 judgeships overall) were filled by Republican presidents. Judge Jane Kelly, appointed by Obama in 2013, is the only judge appointed by a Democrat.

Trump is responsible for four of those Republican appointees, two of whom were rated “Not Qualified” by the ABA, but he could surpass that this time around. (Both the number of appointees and the number of unqualified appointees, who knows!) There are already five Republican-appointed judges eligible to retire now, including three who are in their 70s and 80s, and two more will be eligible to take senior status by the end of 2028. Conceivably, Trump could leave the Eighth Circuit with ten of his own appointees in active service and eight other Republican appointees as the court’s only senior judges. With those odds on appeal, who needs to go to Amarillo?

Ninth Circuit

The Ninth Circuit, long considered the country’s most liberal court, proved to be a reliable thorn in Trump’s side during his first administration, blocking both his Muslim ban and his attempt to rescind Deferred Action for Childhood Arrivals, a program that protects undocumented immigrants brought to the U.S. as children. So incensed was Trump at his frequent defeats that he reportedly told Department of Homeland Security Secretary Kirstjen Nielsen to “just cancel” the court and draft a bill to “get rid of the fucking judges,” a directive Nielsen ignored in the hopes Trump would forget about it. 

In the end, though, Trump got the last laugh, appointing ten judges to the court—more than a third of its active roster. In doing so, he reduced the court’s Democratic majority from a nine-judge margin to three, and dramatically increased the odds of drawing a conservative majority on the Ninth Circuit’s random 11-member en banc panels. Biden appointed eight judges, but none of his appointees replaced a conservative. As a result, the court today is no longer a reliable liberal stronghold, and challengers to the new Trump administration’s policies are seeking friendlier venues in the First and Fourth Circuits. 

Trump will not get anywhere near ten appointments this time around. Fewer judges are eligible to retire, and a majority of those who are were appointed by Democrats. That said, vacancies are not always created voluntarily—Trump flipped two seats during his first term after liberal stalwarts Stephen Reinhardt and Harry Pregerson died. The court’s three remaining Clinton appointees—Judges Kim McLane Wardlaw, Ronald Gould, and Johnnie Rawlinson—are all in their 70s, and Gould, who is 78, also suffers from multiple sclerosis. If Trump can flip two of those seats, he could create an outright conservative majority on the Ninth Circuit, something that would have been unthinkable a decade ago. 

That remains unlikely. The more likely outcome is that he gets to replace one or more of the three George W. Bush appointees who currently qualify to go senior: Judges Consuelo Callahan, Sandra Ikuta, and Milan Smith, Jr. (Smith, however, has said he isn’t interested in retiring and wants to “die with his boots on.”) 

Tenth Circuit

No regional court of appeals has seen a smaller percentage of its judges turn over in the last eight years than the Denver-based Tenth Circuit, which has seven Democratic-appointed judges to five Republican-appointed judges. Of the court’s 12 active judgeships, Trump and Biden appointed only two apiece. 

The other eight judges either are or will be eligible to go senior by the end of 2028. But the odds of Trump remaking the court are slim. For one, the majority of the court’s retirement-eligible judges—five of eight—were appointed by Democratic presidents. For another, they’re young as far as judges go: Of the five, only one—Scott Matheson—is over 70. The more likely retirees are Judges Harris Hartz and Tim Tymkovich, both of whom were appointed by Bush in the early 2000s. Chief Judge Jerome Holmes can go senior as early as 2026, but he’d have to prematurely end his term as chief, which runs until late 2029, to do so.

Eleventh Circuit

There is perhaps no court of appeals more emblematic of Trump’s love affair with racial inequality than the Eleventh Circuit. Despite covering one of the largest percentages of Black Americans of any circuit, Trump didn’t appoint a single Black person to any of the six seats he filled during his first administration. Biden made two appointments to the court, both of whom were Black, but Trump’s message to the Eleventh Circuit’s nine million Black Americans was clear: “No Blacks need apply.”

The court’s 12-member roster is largely set for the foreseeable future, but Trump could get one more shot: Chief Judge William H. Pryor, Jr., appointed by Bush in 2005 after a two-year filibuster, will be eligible to go senior in early 2027 around the same time that his term as chief expires. When it comes to diversity, Pryor is a man after Trump’s own heart. After all, he couldn’t resist the chance to own the libs by hiring Crystal Clanton, the former Turning Point USA staffer who reportedly texted her colleagues “I HATE BLACK PEOPLE,” as one of his law clerks. Clanton has since gone on to clerk for Clarence Thomas, because of course she has. Maybe Pryor will do the conservative legal movement one more solid and give Trump the chance to appoint Clanton in his place.