Who are the Republican Appointed Circuit Judges Who Are Not Taking Senior Status Because Of Emil Bove?

We have seen a steady trickle of stories about unnamed Republican-appointed Circuit Judges who are declining to take senior status because of the Emil Bove nomination. I remain skeptical of this account, and think it is more of a narrative than reality. If anything, some of these judges would not give Trump the seat, regardless of who the replacement is. In a recent National Review post, Mike Fragoso pointed out the obvious: “Nearly all the eligible, Republican appellate judges today were eligible in 2020 and still didn’t go anywhere—back when Emil Bove was but a glimmer in President Trump’s eye.”

Let’s count them up.

Here is a list of all Republican-Appointed Circuit judges who were eligible for senior status by November 2020–at that time, Trump was in the White House, and the Republicans controlled the Senate: Newman (CAFC), Wilkinson (CA4), Smith (CA5), Easterbrook (CA7), Jones, (CA5), Lourie (CAFC), Loken (CA8) Niemeyer (CA4), Henderson (CADC), Hartz (CA10), M. Smith (CA9), Prost (CAFC), Callahan (CA9), Benton (CA8), Southwick (CA5), Shepherd (CA8), Griffin (CA6), Richman (CA5), Ikuta (CA9), and Agee (CA4).

If any of these judges have decided to anonymously complain about Trump to the press, one might ask them why they didn’t take senior status during prior to 2020. I think the reality is that most, if not all of these judges thoroughly enjoy their job, think they are still good at what they do, and have no interest in taking senior status. And that is their choice.

In December 2017, I publicly called on many of these judges who were eligible to take senior status. At least one of those judges publicly responded to me–he remains on active status. Another judge proudly declared at a the Federalist Society Texas Conference that he would not take senior status. And we know that Judge Newman is fighting for her life to stay off senior status. I get it. They have the lifetime commission, and they can decide when to step down.

But if any of these judges who have been eligible for years feel compelled to complain to the press, I must object. They are using their position to try to influence what is an inherently political process. And they are purporting to act under the  premise that, but for Emile Bove, they would take senior status. The Wall Street Journal, Bloomberg, and other outlets need to take some care when interviewing judges. I find that judges are good at asking questions but are unaccustomed to answering them. When they are placed under even the slightest bit of scrutiny, they get extremely defensive. If judges are now serving as anonymous sources to the media, reporters should engage in just a modest bit of vetting to determine whether there are any reasons to discount the statements.

Let’s continue the count.

There are four Republican-appointed who became eligible for senior status during the Biden administration. One, Sykes (CA7), already took senior status. The remaining three have not: Tymkovich (CA10), L. Smith (CA8), and Livingston (CA2). All of these judges could have taken senior status as soon as January 2025 rolled around, long before Emil Bove was announced. Only Sykes did. Again, these judges may enjoy their job, and have no interest in taking senior status. But they have no business then to complain to reporters.

Finally, how many Republican-appointed circuit judges have become eligible for senior status between January 2025 and today? The number is zero. There are no Republican-appointed circuit judges who became eligible since the Bove nomination.

The next Republican-appointed Circuit judge to be eligible will be Chief Judge Sutton in October 2025, but if past precedent is a guide, Sutton will serve out his term as Chief, which will run through May 2028. One judge will be eligible in 2026: Holmes (CA10). Two will become eligible in 2027: W. Pryor (CA11) and Chagares (CA3). (Pryor’s stint as Chief should wrap up about a month after he is eligible for senior status.) Three will become eligible in 2028: Colloton (CA8), Gruender (CA8), and Haynes (CA5).

Perhaps one or more of the judges who will become eligible over the next four years is talking to the press. But I think they are protesting far too soon. Who knows what the caliber of nominees will look like in 2026, 2027, or 2028. Who knows what the Senate will look like after the midterm elections?

Now perhaps there are Republican-appointed district court judges who do not want to be replaced by Trump. Any enterprising reporter should check which senators signed their blue slips. The truth is that many Reagan- and Bush-appointed District Court judges in blue states simply were never conservative. They were appointed as part of some deal for a circuit court nomination. If a judge approved by Diane Feinstein and Barbara Boxer tells a reporter they will not take senior status because of Trump, the reporter should move on. Accordingly, reporters should stop reporting breathlessly that Republican-appointed judges in California, Hawaii, and Massachusetts rule against Trump.

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