Judicial Appointments Memo 11/9/2026

Tom Jipping, Senior Legal Fellow · Edwin Meese III Institute for the Rule of Law

#34 - Data Below as of November 9 of each president’s second year

Background: Article III of the Constitution created the Supreme Court and gave Congress authority to create “inferior” courts¹ with judges who serve “during good Behaviour.”² Nominations to Article III courts are referred to the Senate Judiciary Committee and, if approved, listed on the Executive Calendar.

Confirmations Per Congress: The Senate confirmed an average of 7.5% of the judiciary per Congress during the 18^th century, 7.6% per Congress during the 20^th century, and 8% per Congress so far in the 21^st century. The highest was 31.4% during the 24^th Congress (1835-36) and the lowest was 2.6% during the 114^th Congress (2015-16).

New Judgeships: The Supreme Court has had nine seats since 1869. Congress last created new U.S. Court of Appeals judgeships in 1990 (6.5% increase). Congress last created new U.S. District Court judgeships in 2003 (1.8% increase). Since 1970, the Article III judiciary has grown 74% vs. 68% for the US population.

Article III Nominations Pending in the Judiciary Committee

Article III Nominations Pending in the Senate

If All 16 Pending Nominations Are Confirmed…….

• President Trump will have appointed 72 judges to Article III courts, or 8.28% of the judiciary, during the 119^th Congress vs. an average of 11.33% for the 97^th – 119^th Congresses (1981-2026)
• An 8.28% confirmation rate is lower than all but four of the 23 Congresses during this period
• Only 17 current vacancies (all U.S. District Court) would remain, equaling the total in December 1983; the judiciary, however, was 22% smaller in 1983
• The 1.95% vacancy rate would be the lowest since June 1975
• The previous Judicial Appointments Memo provided data on judicial appointment activity after the last eight mid-term elections
  • 15 nominees received a Judiciary Committee after the 2022 midterm; 13 need a hearing today
  • The Senate confirmed 27 Article III nominations in 2014, 19 in 2010, and 20 in 2002; 16 would need confirmation this year
• President Trump’s appointments during the 119^th Congress will result in a net shift of 22 U.S. District Court seats and four U.S. Court of Appeals from a Democrat appointee to a Republican appointee

Notes

1. These are the U.S. Ct of Appeals (179 positions), U.S. District Ct (673), and U.S. Ct of Int’l Trade (9). Unless indicated otherwise, data in this Judicial Appointments Memo are for Article III courts. ↩
2. Article I gives Congress authority to create “Tribunals inferior to the Supreme Court.” which require nomination and confirmation but serve for 15-year terms. These are the U.S. Ct of Federal Claims (16 positions), U.S. Tax Ct (19), U.S. Ct of Appeals for the Armed Forces (5), and U.S. Ct of Appeals for Veterans Claims (7). ↩