By Margo Kirchner
Even if he serves just one term, President Donald Trump may influence the U.S. Court of Appeals for the Seventh Circuit more than any of his four immediate predecessors. Trump has a remarkable opportunity to fill from four to nine of the court’s 11 seats.
The Seventh Circuit sits in Chicago and decides appeals from federal trial courts in Wisconsin, Illinois, and Indiana. The court has 11 full-time, active judge positions plus several “senior judges” who may take a reduced caseload in semi-retirement. The judges generally sit in three-judge panels.
The President picks nominees for appointment to the court; they take the bench if confirmed by the Senate.
Federal judges may take senior status or retire under the Rule of 80---at age 65 if they have served at least 15 years on the bench, age 66 with 14 years, and so on. When a judge chooses senior status or full retirement (or, in unfortunate circumstances, dies), the President gets to name a successor.
With the surprise retirement of Circuit Judge Richard Posner a couple weeks ago, four spots on the Seventh Circuit are available for Trump to fill. Circuit Judge Ann Claire Williams took senior status in June 2017. Circuit Judge John Daniel Tinder took senior status in early 2015. And the seat of Circuit Judge Terence T. Evans has famously been vacant since January 2010.
When Trump took office in January, he acquired over 100 judicial vacancies, exceeding the vacancies inherited by Presidents Barack Obama (54) and George W. Bush (81). The Republican Senate’s delay in moving nominees forward during the latter years of the Obama presidency accounts for many of the vacancies, and the situation gives Trump an opportunity for long-lasting impact.
Trump is moving quickly to fill the vacancies and recently picked up his pace. On Sept. 11, Trump proposed his tenth slate of nominees for federal courts around the country. In total, Trump has nominated 53 individuals for judgeships, and 34 of those nominations came since mid-July. The Senate already confirmed six of the nominees.
Trump’s nominations to date cover the Evans and Tinder spots. The two remaining Seventh Circuit spots, allocated to Illinois, may require negotiation with that state’s two Democratic senators, but Trump has three years left in his term to get nominees for those positions through the Senate. If he fills all four seats, some three-member panels of the Seventh Circuit may consist completely of Trump appointees.
And these four seats are not the end of Trump’s possible reach. Five of the seven active Seventh Circuit judges are eligible for senior status or full retirement. Only Circuit Judges David Hamilton and Diane Sykes are younger than 65, and all of the judges over age 65 meet the service requirement and can retire.
Will the Seventh Circuit become "Trump's Tribunal"?
Chief Judge Diane Wood and Circuit Judge Frank Easterbrook are still under 70. But Circuit Judge Michael Kanne is 78, Circuit Judge Ilana Diamond Rovner is 79, and Circuit Judge Joel Flaum is 80. The average age of the Seventh Circuit active judges is 70 years old (though Senior Judge William Bauer makes that seem young---he continues hearing appeals at age 91). In contrast, the average age of the judges of the Eighth Circuit, which covers appeals in Minnesota and six other states to Wisconsin’s west, is 64.
If even two of the five eligible judges take senior status, retire, or die in the next two years and Trump has time to get a nominee through the Senate by the end of 2020, Trump appointees could constitute a majority of the court even if Trump serves only one term. The likelihood of a Trump-packed court greatly increases if Trump wins a second term---will Judge Flaum still want to serve as an active judge at age 85?
In comparison, during their eight years in office President Obama filled one Seventh Circuit seat (Judge Hamilton), President George W. Bush filled two seats (Judges Tinder and Sykes), and President William Clinton filled three (Judges Wood, Williams, and Evans). President George H.W. Bush appointed one Seventh Circuit judge (Judge Rovner) during his four-year term. The last president with an opportunity like Trump’s was Ronald Reagan; he appointed eight judges to the court during his eight years in office.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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