Federal judges are retiring at a recent-record slow pace in 2025 — Excess of Democracy

We can see two fairly striking trends. The first is the rush of retirements and the increase in vacancies in the early days of the Biden administration. The second is the exceedingly slow pace of retirements in the second Trump administration, disproportionately low.

Of course, in the first Trump administration, there were a tremendous number of vacancies (112 and 15 future vacancies) on January 1, 2017, due to some Senate maneuvers. Trump left a sizeable impact on the judiciary. Biden entered with only 49 vacancies and 5 future vacancies on January 1, 2021, which ballooned to 79 and 27 in just four months. Trump entered his second term with just 40 vacancies and 10 future vacancies. That’s barely moved, to 46 vacancies and 15 future vacancies.

One could argue, there are simply fewer retirement-eligible judges—and particularly fewer retirement-eligible Republican judges—to create such vacancies. But, by my count, there are around 20 or so senior status-eligible Republican-appointed court of appeals judges, and another 50-ish district court judges (or who are near senior status and could announce a future vacancies). That is, and I haven’t looked back all the statistics, it might be a lower cohort than the past, but it is not to say that the well is dry.

Another might wonder whether judges are less likely to retire if they doubt the President will appoint nominees consistent with the judges’ preferences. A recent New York Times report of a potential nominee who would be quite controversial, for instance, could firm up those views in the minds of judges. Please note: i am making no assessment on whether this nominee is “good” or “bad.” No one, I think would doubt his qualifications, but I imagine the questions of competence and temperament—more subjective assessments, to be sure—would be of some concern in the greater debate. The concern here is not the merits, but its appearance and the signal it sends.

If that signal is being so received by the judiciary, the revealed preferences would be consistent with that signal. There are other signals, of course—the widely-heralded appellate court nomination of Whitney Hermandorfer, for instance, a former clerk to Justices Barrett, Alito, and then-Judge Kavanaugh, sends a different one. But there are exceedingly few nominations so far (the administration is moving much more slowly than the Trump 45 and the Biden White Houses), and the signals therefore are fewer.

It is a trend to watch. If the administration is not giving federal judges adequate assurances that their nominees will be of a type of the last administration, then the revealed preferences of these judges may tell us a great deal, and it could redound to the benefit of a future Democratic administration.