Conservative Judges Shun Retirement Under Trump Second Term (1)

Federal judges are retiring at a historically slow pace at the onset of President Donald Trump’s second term, most strikingly among those appointed by his Republican predecessors.

Few of the roughly 70 Republican-appointed judges eligible to take a form of partial retirement or completely step down from the bench as of June 1 have done so, denying Trump the chance to pick their replacement.

The lack of new vacancies is thwarting Trump’s plans to continue replacing an older and more moderate generation of Republican-appointees with younger and even more conservative jurists.

Judges don’t typically say why they opt to serve past the point when they qualify for retirement, but the Trump administration’s early actions and rhetoric, including its open hostility toward the courts and judges who rule against the president’s agenda, are factoring into those deliberations, former federal judges told Bloomberg Law.

“There is some of that going on nationally from what I hear,” said Robert Kugler, a retired New Jersey federal judge appointed by George W. Bush.

There were at least 22 life-tenured, Republican-appointed appellate judges eligible for senior status who had yet to announce plans to step back from active status as of June 1, according to a Bloomberg Law analysis. As for district judges, at least 42 were eligible by then and hadn’t announced.

Sixteen new opportunities to fill judgeships have opened between Jan. 1 and June 1. The total includes seats that opened after judges retired or took senior status, announced plans to retire, along with deaths. All of the judges who announced future plans to take senior status or retire were appointed by Republican presidents.

Trump started the year with at least 39 judgeships and six future seats to fill, according to US courts data. By June 1, that increased to 49 current vacancies and 12 future vacancies.

That’s compared to the 112 vacancies and 15 future openings he had on Jan. 1, 2017 when Trump benefited from a Republican blockade on Barack Obama’s judicial nominees. Trump gained an additional 26 vacancies, both current and future, by June 1 of that year. He made 234 lifetime appointments total, including three Supreme Court justice, by the end of his first term.

To qualify for retirement, a judge needs to be at least 65, and their age plus years of judicial service must equal at least 80. The minimum number of years of service to qualify is 10.

Scarce Openings

Studies show that the presence of a like-minded president can influence judges’ retirement decisions. It’s why a change in control of the White House often induces a retirement wave.

President Joe Biden gained 57 openings, both current and future, between January 1 and June 1 of his first year in office, according to Derek Muller, a University of Notre Dame law professor who tracked the early pace of vacancies for recent presidencies using the US Courts’ archived data. George W. Bush had 30 during the same time frame, while 29 opened for Obama.

Vacancies open for a variety of reasons, including deaths. Both those differences, including the factors behind retirements, should even out over administration, Muller said.

“When you see such stark outliers like the Biden administration on the one hand and the second Trump administration on the other, it suggests that while there are those normal, ordinary things that are happening with respect to retirement, the timing of retirements for political reasons has shifted pretty significantly again,” he said.

Trump’s rhetoric about judges — including calling those who rule against him “monsters” — hasn’t gone over well with sitting and retired judges appointed by both parties. That includes institutionalist conservative judges appointed by prior Republican presidents Trump needs to leave to create vacancies, said Gregg Nunziata, executive director of the Society for the Rule of Law, a conservative legal group that’s critical of Trump.

Lee Yeakel, a retired Texas federal judge previously appointed by George W. Bush, said that rhetoric has been of concern to judges and their families “because we get precious little security in the judiciary.” Yeakel is part of a coalition of retired federal judges appointed by Republican and Democratic presidents who’ve vowed to protect judicial independence amid growing threats against the judiciary.

Nunziata said the Trump administration’s rhetoric that challenges the “authority and independence” of the judiciary and “tarnishes judges as seditionist or saboteurs is extremely off putting to conservative judges, even those who, in their personal politics, might be otherwise sympathetic to things that the administration wants to do.”

Nunziata wouldn’t speak to specific conversations he’s had with judges about Trump’s rhetoric but said it’s “not surprising that a conservative judge who values the judiciary as an institution and its indispensable role in our system would hesitate to retire or take senior status.”

Ursula Ungaro, a retired federal judge in South Florida, appointed by George W. Bush, said she’s heard “a hint or two” that some of her peers still serving “would stay beyond their eligibility for senior status to see what happens toward the end of the Trump administration.”

“Frankly, it was a factor for me in taking senior status, but it was not the determinative factor as to my making a decision to leave,” said Ungaro, who took senior status under Biden but later retired to join Boies Schiller Flexner. She was replaced by Melissa Damian, a Biden appointee.

Conservative Division

Trump’s commitment to appointing traditional conservative judges once united right-leaning lawyers, even as other aspects of the president’s record alienated some. But nominating his former personal lawyer to the US Court of Appeals for the Third Circuit in his second term has proven divisive.

Prominent conservative lawyers have decried what they see as the administration’s interest in installing Trump loyalists rather than lawyers with traditional conservative credentials. MAGA-aligned conservative activist Mike Davis criticized “the establishment right” that disapproves of Emil Bove’s nomination “because he refuses to play by their rules.” Those traditional conservatives may also be sitting on the bench, equally concerned about being replaced by a similar nominee, Nunziata said.

“I very much would suspect that a nomination like Bove will gives judges otherwise contemplating taking senior status a reason to continue their service instead,” he said.

Most of the nearly two dozen retirement eligible, Republican-appointed circuit judges could have retired during Trump’s first term, and so it’s unclear if they’ll ultimately do so this time. But it’s not unusual for judges to stick around past eligibility age, especially those who aren’t faced with health concerns or other urgent considerations.

Yeakel said that judges are thinking about these decisions through a different prism “perhaps than they have in the past” amid the unprecedented nature of the Trump administration. But judges who choose to wait until the 2028 election are also taking a risk.

“You make a presumption that you’re going to agree with that president more, but you don’t know,” he said.