特朗普的司法确认机器与第一任期鼎盛期相比显疲态

Trump’s judicial confirmation machine shows signs of slowing compared to first-term boom

2026-03-18T06:00:00-0400 / CBS News

Washington — President Trump’s first four years in the White House brought about significant changes to the federal judiciary and the Supreme Court, shifting it rightward.

But the president’s second term could yield less of an impact on the federal bench, as a confluence of factors — fewer vacancies, a slower pace of retirements and the results of the upcoming midterm elections — are likely to slow the judicial machine that churned out more than 200 judges in Mr. Trump’s first term.

The Senate has so far confirmed 33 of Mr. Trump’s nominees to the federal bench: six to the courts of appeals and 27 to the district courts. While that surpasses the 24 judges who were appointed in the first 13 months of the president’s first term, those picks included one Supreme Court justice and 13 judges named to the courts of appeals.

There are 37 current vacancies on the nation’s trial courts, and another six seats are set to open up in the coming months. There are also four future vacancies on the appeals courts.

Of the 47 vacancies, current and future, Mr. Trump has announced just 12 nominees.

“Getting good judges on the courts was a very high priority in the first administration. I don’t think it’s as high a priority in this administration for three reasons: One, there just aren’t as many seats available. Two, they succeeded so much the first time around, especially with the Supreme Court, that there’s not that much more room for success. And three, they are trying to do so much through executive action. That’s clearly been the focus now,” Ed Whelan, a senior fellow at the Ethics and Public Policy Center who is a leading commentator on judicial nominations, told CBS News. “I don’t think that the vacancies are getting the same level of attention that they got the first time around.”

Trump’s first term

Mr. Trump came into the White House in 2017 with an abundance of judicial vacancies to fill, thanks to then-Senate Majority Leader Mitch McConnell’s decision to block former President Barack Obama’s nominees during his final two years in office. That included a Supreme Court seat left open by the death of Justice Antonin Scalia in 2016. Mr. Trump selected Justice Neil Gorsuch to fill it.

As a result of McConnell’s blockade, and a sharp focus on judicial confirmations from then-White House counsel Don McGahn and Senate Judiciary Committee Chairman Chuck Grassley, the Senate confirmed 234 of Mr. Trump’s nominees to the Article III courts, a figure that includes Gorsuch and two other Supreme Court justices, Brett Kavanaugh and Amy Coney Barrett.

In this administration, judicial nominations are led by Steve Kenny, deputy White House counsel for nominations. Abigail Jackson, White House spokeswoman, told CBS News in a statement that the Trump administration is “just getting started” after surpassing the pace of confirmations from the president’s first term.

“President Trump is selecting highly qualified nominees, with great respect for our Constitution, who are being confirmed expeditiously and will serve on the bench for decades,” she said. “In the face of historic Democrat obstruction, the Trump administration has still be[en] wildly successful confirming nominees who will uphold the Constitution and rule of law.”

Still, the president faces a steep climb to match the level of confirmations in his first term.

The blue slip

One complicating factor for Mr. Trump is a Senate policy known as the blue slip, which signals a home-state senator’s support or disapproval of a judicial nominee. During the president’s first term, Grassley allowed picks to the appeals courts to proceed without positive blue slips from both home-state senators, but he has kept the policy in place for district court nominees.

As a result, a candidate for the district court doesn’t get a confirmation hearing before the Senate Judiciary Committee unless they have the backing of both of their home-state senators.

Mr. Trump has pushed Grassley to get rid of the blue slip for his nominees for judges and U.S. attorneys, as his picks to lead federal prosecutors’ offices in eastern Virginia and New Jersey — his former personal lawyers Lindsey Halligan and Alina Habba, respectively — were opposed by the Democratic senators representing those states. But Grassley has remained firm, refusing to do away with the longstanding Senate tradition.

It’s unclear how much a lack of support from Democratic senators in states with open district court seats is stymieing the judicial nomination process for the president. Eleven of the 28 existing vacancies without a nominee are in blue states or states with one Republican and one Democratic senator. But seven of the open seats without nominees are on district courts in Texas, which has two GOP senators.

A White House official said the administration always consults with home-state senators.

Sharper opposition, and a dearth of retirements

Mr. Trump’s judicial nominees face greater opposition from senators this term, according to a January analysis by Russell Wheeler, a scholar at the Brookings Institution who studies judicial confirmations.

During the first year of his first term, seven of the president’s 12 confirmations to the appellate courts received at least 40 “no” votes. But so far in his second term, all six of his picks to the appeals courts received 40 or more votes against their confirmations, Wheeler found.

For district court confirmations, none of the president’s first 10 district judges confirmed in his first term garnered 40 or more “no” votes, while 18 of his 21 confirmations in the first year of his second term were opposed by at least 40 senators.

“It’s just part of our polarized politics,” Wheeler told CBS News “It used to be the idea was that the president won the election and we’ll let him appoint judges unless they’re really just beyond the pale because we expect the same thing when our person is in the White House. Well, that’s all out the window now.”

Another challenge for the president is the number of judges choosing to remain active. Wheeler found that sitting judges today are not retiring at the same rate they did during Mr. Trump’s first term.

Judges typically retire during the administration of the same party as the president who appointed them. During former President Biden’s term, for example, 26 Democratic-appointed appeals court judges and three from the opposite party stepped aside between the 2020 election and the end of his first year in office, according to Wheeler’s analysis.

In Mr. Trump’s first term, 15 Republican appointees to the appeals courts and four Democratic appointees left their seats within that same time frame. But in the president’s second term, there were just three appeals court vacancies created — all from Republican appointees — after the 2024 election and through the end of Mr. Trump’s first year back, Wheeler found.

“We can all speculate why that is,” he said. “On the one hand, you might say, ‘Geez, here I am a federal judge and this guy is saying all this stuff about me, riling up his base. I don’t want my husband and kids to be attacked by some lunatic in the grocery store.’ So the judge says, ‘I’m going to get out of here.’ But they’re not doing that, and I think it could be because they just don’t want to give him vacancies to fill.”

Still, three appeals court judges appointed by former President George W. Bush announced last month that they are taking senior status, a form of semi-retirement that allows the president to fill their seats. Their announcements come ahead of the midterm elections in November, which will determine whether Republicans hold onto their majority in the Senate.

“The big question is, do Republicans retain control of the Senate in the elections?” Whelan said. “If they don’t, the numbers in Trump’s last two years are going to be very, very low if not zero. But even if they do, it just isn’t clear that there will be that many seats that become available.”

Concerns about potential successors

Some have speculated that the dearth of retirements may be because of concerns about potential successors. Some of Mr. Trump’s picks so far, such as Rebecca Taibleson to the U.S. Court of Appeals for the 7th Circuit and Whitney Hermandorfer to the U.S. Court of Appeals for the 6th Circuit, boast traditional conservative credentials, including clerkships with Scalia and Justice Samuel Alito, respectively.

But one, Emil Bove to the U.S. Court of Appeals for the 3rd Circuit, came under scrutiny for his work at the Justice Department last year and faced questions about his qualifications. Bove served as Mr. Trump’s personal defense lawyer and was a high-ranking Justice Department official until he was tapped for the federal bench. A Justice Department whistleblower accused Bove of suggesting that government lawyers should ignore court orders. He also directed prosecutors to drop corruption charges against former New York City Mayor Eric Adams in exchange for cooperation with federal immigration enforcement.

Bove was narrowly confirmed by the Senate in a 50-49 vote.

Retirement decisions are individualized and personal, and some judges have continued to remain in active service despite being eligible to retire years ago. But some conservative judges, including some appointed by Mr. Trump, dislike how the president talks about the judiciary and are concerned about what those comments may portend for how he views filling open seats, according to Gregg Nunziata, former chief nominations counsel for Republicans on the Senate Judiciary Committee.

“No judge is going to be excited about the prospect of a president selecting future nominees based on any conception of loyalty to the occupant of the White House,” Nunziata, who today leads the group Society for the Rule of Law, told CBS News. “That offends judges across the ideological spectrum, including judges who were appointed by the president and who generally think well of the president and really don’t like that mindset or that rhetoric, and I think broadly view it as damaging to the judiciary.”

A first-term legacy — and growing tensions

Mr. Trump’s success in reshaping the federal judiciary in his first administration was attributed to the work of McGahn, McConnell, Grassley and outside conservative groups who viewed his election as a rare opportunity to shift the bench rightward. As a result of his judicial appointments, Mr. Trump flipped the ideological composition of three appeals courts and brought the U.S. Court of Appeals for the 9th Circuit, which had been regarded as a liberal court, closer to parity.

With his three Supreme Court appointments, the court’s conservative majority widened to 6-3. The high court would go on to achieve several long-held goals of the conservative legal movement: overturning Roe v. Wade, the landmark decision that established the constitutional right to abortion; ending affirmative action in higher education; and curtailing the power of federal regulatory agencies.

In its current term, the high court also appears poised to unwind a 90-year-old decision that allows Congress to protect officials at certain independent federal agencies from being fired by the president at will, which would give Mr. Trump more power over those boards and commissions.

But the president has publicly soured on one of his former outside judicial advisers, Leonard Leo, who helped craft a list of potential Supreme Court candidates after Scalia’s death in 2016. Mr. Trump has lambasted Leo, calling him a “sleazebag” who “probably hates America.”

The president’s attack came after a three-judge panel of judges on the U.S. Court of International Trade ruled that many of his tariffs were illegal. The Supreme Court went on to affirm that decision last month, after which Mr. Trump lobbed personal attacks on two of the justices he appointed — Gorsuch and Barrett — for voting to invalidate the levies.

The president has continued to denounce the high court over its tariffs decision, calling it “completely inept and embarrassing” and a “weaponized and unjust Political Organization” in a social media post Sunday.

The Republican-appointed justices, he wrote, “openly disrespect the Presidents who nominate them to the highest position in the Land, a Justice of the United States Supreme Court, and go out of their way, with bad and wrongful rulings and intentions, to prove how ‘honest,’ ‘independent,’ and ‘legitimate’ they are.”

Chief Justice John Roberts, selected for the Supreme Court by former President George W. Bush, joined Barrett, Gorsuch and the three liberal justices to form the six-justice majority that ruled against Mr. Trump’s sweeping tariff regime.

Pointing to the president’s attacks on the judiciary and the judges he appointed in his first term, Nunziata said a significant question about Mr. Trump’s second stint in the White House is whether he’d look for a “different type of judge” who could demonstrate political loyalty over judicial conservatism.

“He certainly began this administration trying to staff the executive branch with nominees more distinguished by personal loyalty than anything else, and the pattern of those appointments to the executive branch, including people he’s tried to place into positions of U.S. attorneys, I think give considerable rise to a concern that he will apply such a loyalty test to the judiciary and particularly if a Supreme Court vacancy should open,” he said.

While Bove’s nomination amplified those concerns, Nunziata said it’s still too early to tell whether it was the start of a pattern.