Regardless of who wins the upcoming U.S. presidential election—Kamala Harris or Donald Trump—both candidates will face a similar reality: limited opportunities to reshape the federal judiciary. By the end of President Joe Biden’s term, he and former President Trump will have collectively appointed nearly half of the 890 federal judges across the country, creating a generational shift in the U.S. judiciary.
Trump’s three appointments to the Supreme Court resulted in a 6-3 conservative majority, significantly influencing rulings on key issues, while Biden has appointed one justice. Both presidents have chosen younger appointees, which further cements their legacy in the courts for decades. However, the pool of judges eligible to retire or take “senior status”—a form of semi-retirement that opens judicial vacancies—is shrinking.
At present, there are 67 vacancies or anticipated retirements in the federal judiciary, with President Biden already nominating candidates for 28 of those spots. Over the next four years, another 247 judges, split almost evenly between Republican and Democratic appointees, will be eligible for retirement. However, historical trends suggest many judges will delay retirement until a president aligned with their political views takes office.
The winner of the November 5 election will likely appoint fewer judges than Trump did during his first term (234 appointments, the second-highest in U.S. history) and Biden’s current tally of 213. Despite these limitations, both candidates could still influence the ideological makeup of lower courts, including key appellate courts that handle a vast majority of federal cases.
The ability to dramatically alter the U.S. Supreme Court, however, appears limited. With three justices—Clarence Thomas (76), Samuel Alito (74), and Sonia Sotomayor (70)—in their 70s, potential retirements could create opportunities for the next president. But such moves will depend on the outcome of the election, as well as which party controls the Senate, which plays a crucial role in confirming judicial nominees.
Control of the Senate is up for grabs, with Democrats holding a slim 51-49 majority. This dynamic will heavily influence how successful either Harris or Trump would be in appointing judges. Trump’s track record of nominating conservative, originalist judges has significantly impacted the judiciary. Prominent examples include U.S. District Judge Aileen Cannon, who ruled on the classified documents case involving Trump, and Judge Matthew Kacsmaryk, who suspended approval of the abortion pill mifepristone. Both decisions demonstrate how key judicial appointments can block or advance the executive agenda.
On the other hand, a potential Harris presidency is expected to focus on increasing diversity, both demographically and professionally, within the federal judiciary. The Biden administration has already made strides in nominating women and people of color, reflecting a push for greater representation on the bench.
If Trump returns to office, his supporters expect him to continue appointing what they call “bold and fearless” constitutionalist judges who interpret the law as written. Brian Hughes, a senior adviser to Trump’s campaign, stated, “President Trump appointed judges who are committed to upholding the Constitution, and he will do so again when voters bring him back to the White House.”
Meanwhile, the Harris campaign is expected to emphasize judicial diversity, with a focus on nominating candidates from a broader range of professional backgrounds, mirroring Biden’s strategy. Progressive voices, such as Jake Faleschini from the Alliance for Justice, argue that Harris would bring a judicial philosophy that favors fairness and inclusivity on the bench.
Mike Davis, a Trump ally and founder of the conservative advocacy group Article III Project, warned that a Harris administration would turn the judiciary into a breeding ground for “activist” judges, potentially shifting the courts to the left.
In summary, while the next president may face fewer opportunities to reshape the judiciary, their choices will still have a profound impact on the courts, reflecting their broader vision for the future of American law.
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