Judicial Seats Are Opening for President Biden to Fill

The Supreme Court building in Washington, D.C., August 29, 2020 (Andrew Kelly/Reuters)

A growing number of federal judges are electing to take senior status in the wake of President Biden’s inauguration. This will provide the Biden Administration with the opportunity to begin making an imprint on the federal courts.

Thus far in January, at least 20 judges have taken senior status or announced their attention to do so. As of January 1, there were 49 vacancies on the federal courts, and an additional five future vacancies that had been announced. As of yesterday, the Administrative Office of the U.S. Courts listed 53 vacancies and 19 announced future vacancies. In addition, there are reports of other judges, such as Judge Ursula Ungaro of the Southern District of Florida and  Judge James Gwin of the Northern District of Ohio, who are going senior but are not yet listed on U.S. Courts website. There are still others, such as Judge Gwin’s colleague, Solomon Oliver, who have acknowledged they are considering whether and when to follow suit.

Most of the current and pending vacancies are on district courts, as one would expect, but there are already five current or pending openings on  circuit courts, including two on the U.S. Court of Appeals for the Second Circuit in New York, and a seats on the U.S. Courts of Appeals for the First, Seventh, and Tenth Circuits. In addition, assuming Judge Merrick Garland is confirmed as President Biden’s Attorney General, this will open a seat on the U.S. Court of Appeals for the D.C. Circuit too.

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Biden’s nominees for these vacancies are unlikely to shift the ideological balance of many courts. Most of the open or opening seats were held by Democratic appointees, though not all of them. (Judge Ungaro, for example, was appointed by President Bush in 1992 and Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit was appointed by President Reagan.) Yet Biden’s nominees are likely to be younger, and often more progressive, than the judges they replace, and that in itself will be significant, even if they do not alter the overall ideological valence of the courts on which they sit.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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