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Some federal judges plan to retire when Trump exits. Will Biden be able to replace them?

By Maura Dolan, Los Angeles Times on

Published in News & Features

Trump has appointed more judges to the 12 regional circuit courts — just one rung below the U.S. Supreme Court — than nearly every other president in a single term during the modern era. Even as Trump's term winds down, the Senate is trying to push through judicial confirmations.

As a result, Trump's imprint on the federal courts will persist for decades. Most Trump appointees are relatively young, male and conservative, and like all federal judges, they have life terms. Trump also has appointed three of the nine justices on the Supreme Court, giving it a 6-3 conservative majority.

While Trump was filling the courts, Republican Senate leadership ended the "blue slip" tradition of allowing senators to veto any circuit court nominee from their states.

That tradition may be revived when Biden makes appointments, Tobias said. If that happened, red state senators would have to approve Biden's picks before they could have a hearing.

Sen. Charles E. Grassley (R-Iowa) is expected to take over the Judiciary Committee next year from Sen. Lindsey Graham (R-S.C.), but little is expected to change for Democrats. McConnell "calls the shots," Tobias said.


Given the Republicans' zeal to fill all judicial vacancies before Trump leaves office, Biden's ability to shape the court may be limited. President Clinton in his eight years in office appointed 62 judges to the regional circuit courts, but about a third already have taken senior status or no longer serve on the courts. Some Obama appointees also could decide to take senior status during the next four years, and deaths and illness may bring other openings.

On the 9th Circuit, the seats filled by the late legendary Judges Harry Pregerson and Stephen Reinhardt, considered the two most liberal circuit judges in the nation, are now held by Trump appointees. Getting like-minded liberals past a Senate Republican majority probably would be challenging. Among the Clinton appointees qualified to take senior status are 9th Circuit Judges Richard A. Paez, William A. Fletcher and Marsha S. Berzon.

"Would the Republicans let someone replace them with people similarly liberal?" a 9th Circuit judge asked. "I don't think so."

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