Judiciary asks Trump to skip 10th Circuit nomination, allowing court to shrink

By Nate Raymond

July 29 (Reuters) - The federal judiciary has a pitch for U.S. President Donald Trump for the next time a seat opens up on one of the 12 regional federal appeals courts, one that history suggests may go unheeded: Don't fill it.

The U.S. Judicial Conference in a report released last week detailing the results of its closed-door meeting in March said the judiciary's policymaking body agreed to recommend the president and U.S. Senate do nothing the next time a seat opens up on the Denver-based 10th U.S. Circuit Court of Appeals.

That decision reaffirmed prior recommendations it had made dating back to 2017 when Trump was first in office to effectively shrink the 10th Circuit in order to deal with what it describes as low per-judge caseloads on the appeals court.

The Judicial Conference similarly in March agreed to recommend leaving unfilled the next vacancies to emerge on the district courts in the Southern District of West Virginia, the Eastern District of Michigan, and the District of Wyoming.

The White House did not respond to a request for comment on the recommendations. But experts say Trump is likely to disregard them, just as he did in his first term when he appointed two new judges to the 10th Circuit and Democratic President Joe Biden did when he named another two to the same court.

"No president would intentionally pass up the opportunity to make an important appellate nomination," Robert Luther, who worked on judicial nominations while serving in the White House Counsel's Office during Trump’s first term, said in an email.

Such vacancies in Trump's second term are far from hypothetical, as two appointees of Republican President George W. Bush are now eligible to take senior status: U.S. Circuit Judges Harris Hartz, 78, and Timothy Tymkovich, 68.

Any appointment to that court could add to Trump's legacy of putting a conservative stamp on the judiciary. He secured appointment of 234 judicial nominees in his first term, and the Senate has confirmed four more since January.

The 27-member Judicial Conference, which is headed by Chief U.S. Supreme Court Justice John Roberts, makes such recommendations to leave vacancies unfilled every two years based on a biennial survey of judgeship needs, based on what it says are "consistently low per-judgeship caseloads."

Russell Wheeler, a nonresident senior fellow at the Brookings Institution who tracks judicial nominations, said he was unaware of a president ever following the Judicial Conference's vacancy recommendations.

"I suspect the Conference is aware that these recommendations are likely to be ignored, but makes them anyway partly to present itself as a careful steward of public funds," he said.

The 10th Circuit hears appeals in cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. It currently has seven appointees of Democratic presidents and five Republican appointees.

Over the last eight years, 10th Circuit case filings have held steady at around 1,700 to 1,800 annually, with the exception of a slight drop off in 2021, said Chris Wolpert, its clerk of court.

Courts that have previously appeared on the Judicial Conference's do-not-fill list for vacancies can often fall off it with no explanation.

Such was the case with the Western District of Oklahoma, which was first assessed in 2019 as having too few cases per judge and was again most recently in 2023. The Southern District of West Virginia took its place in 2025's list.

Luther, who is now a professor at George Mason University's Antonin Scalia Law School, said "caseloads can change overnight with new legislation or administration policies, just as court staffing can change equally fast based on retirements or health circumstances."