For presidents who want to shape the federal judiciary, it's been good times for years. The Senate has confirmed President Biden's 213th nominee, and Donald Trump appointed 234 federal judges during his term. But it looks like the next president will be greeted on Inauguration Day by the fewest vacancies in more than three decades, NBC News reports. Just 43—4.9%—of the 870 Article IIl judgeships authorized by Congress are vacant at the moment. If pending nominations are confirmed when the Senate returns to session, the 47th president would come into office with the fewest number of judicial vacancies since George HW Bush took the oath in 1989.
The number of vacancies fluctuates and is affected partly by which party controls the White House and Senate. The next change could come when the new administration comes into power; judges have been known to wait to retire until they know who will appoint their replacement. "In very short order, the number of vacancies available to be filled will increase, possibly quite significantly," said Thomas Jipping of the Heritage Foundation. That number also will be affected by the emphasis Biden and Trump, especially, placed on selecting young nominees. "At some point, with all of these younger judges, particularly on the Court of Appeals, we're going to just run out of people eligible to retire," said John P. Collins Jr., who teaches at the George Washington University Law School.
The Senate majority leader has a lot to do with the number of openings. Biden inherited 46, but Trump had more than 100 after Republican leader Mitch McConnell built a backlog by blocking Barack Obama's nominees. He then made confirming Trump's picks a priority. The current leader, Democrat Chuck Schumer, wants to push Biden's total past Trump's in the lame duck session. "We're going to do everything we can to get as many judges done as possible, trying to overcome the Republican obstruction," Schumer told NBC. (More federal judges stories.)
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