National Review has published my latest piece of how President Trump could have almost 100 new judgeships, and it does not require passing any new judge bills:
Recently, a prominent conservative law professor and his former student created a stir when they urged Republicans to create over 200 new judgeships for President Trump to fill. This proposal, I wrote, was “ill-considered and should be discarded.” And indeed it was: The authors removed the proposal from the Internet and are revising it.
There is, fortunately, a far easier way to give President Trump many new vacancies to fill. According to my calculations, there are over 100 judges appointed by Presidents Ronald Reagan, George H. W. Bush, and George W. Bush who can immediately open up new vacancies by announcing a plan to leave active service, either upon the confirmation of their successor or on a future date. They should be encouraged to do so over the next year.
My last part is perhaps my most important: if the Senate flips in 2018, I predict the nomination process will grind to a halt, and all vacancies will remain open till 2021, at the earliest. The next twelve months indeed present a “unique opportunity.”
If the Senate flips in 2018, the Reagan, Bush, and Bush judges who held out — with an average age of 73 — may not have their replacements confirmed until 2021 at the earliest. And that’s assuming the president and the Senate are of the same party. The next twelve months present a unique opportunity for a series of smooth transitions within the federal judiciary. Waiting beyond this time will occasion prolonged vacancies and contentious confirmation battles.
Indeed, these dynamics may provide some food for thought for Justice Kennedy as he ponders retirement. A Supreme Court vacancy that arises in a divided government could last two, four, or even six years. As law professor Jonathan Adler observed, “Whether or not Justice Kennedy likes the idea of President Trump picking his successor, he may like the idea of his seat remaining vacant for an extended period of time even less. This would mean the time is now.”
President Trump’s most lasting legacy will be the judiciary. And he may have less than a year to complete it.
I hope this is a topic that is discussed seriously, soberly, and soon.