Two chief US appellate judges to leave active service, handing Trump vacancies

By Nate Raymond

Feb 23 (Reuters) - The chief judges of two federal appeals courts plan to leave active service later this year, giving President Donald Trump a chance to fill their seats with new appointees as judicial vacancies have slowed.

Chief U.S. Circuit Judge Debra Ann Livingston of the New York-based 2nd U.S. Circuit Court of Appeals and Chief U.S. Circuit Judge Jeffrey Sutton of the Cincinnati-based 6th U.S. Circuit Court of Appeals notified Trump of their plans on Friday, according to the judiciary's vacancies website.

They announced their decisions to take senior status ahead of the midterm elections in November that could put continued Republican control of the U.S. Senate into question, potentially complicating Trump's ability to name their successors if they waited longer.

Trump in his second term has only been able to nominate seven appellate judges due to a dearth of vacancies . He appointed 54 from 2017 to 2020 during his first term in office, helping shift the judiciary's ideological balance to the right alongside his three appointments to the U.S. Supreme Court.

Both judges were appointed by Republican President George W. Bush. Livingston, 66, plans to leave active service on July 1, while Sutton, 65, in a letter to Trump said he planned to retire from active service effective October 1.

"It has been an honor to serve the Sixth Circuit as an active judge, and it will be an honor to do the same as a senior judge," Sutton wrote.

Neither judge responded to requests for comment.

Senior status is a form of semi-retirement for judges over the age of 65 who have completed at least 15 years on the federal bench. Presidents may name new full-time judges to fill those judges' seats.

Livingston has served on the 2nd Circuit since 2007 and became the chief judge in 2020. She is among six Republican appointees on the 13-member court, putting her in the frequent position of dissenting.

In 2018, she dissented from a 10-3 ruling that Title VII of the Civil Rights Act bars discrimination based on employees’ sexual orientation, which the U.S. Supreme Court affirmed in 2020 in its landmark LGBTQ rights decision in three consolidated cases titled Bostock v. Clayton County.

In 2019, she dissented from a 2-1 ruling directing two banks to comply with subpoenas from congressional Democrats seeking records related to Trump's business ventures, calling the subpoenas "deeply troubling."

Sutton joined the 6th Circuit in 2003 and became its chief judge in 2021. In 2024, he was appointed chair of the executive committee of the judiciary's top policymaking body, the Judicial Conference.

He has been an influential conservative voice on his court, which has a 10-6 majority of Republican appointees.

In 2014, he authored a 2-1 ruling upholding same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee. The U.S. Supreme Court agreed to review that ruling, leading to its landmark 2015 decision in Obergefell v. Hodges legalizing same-sex marriage nationwide.

Sutton in 2024 authored a 2-1 ruling rejecting a constitutional challenge to Tennessee's decades-old policy of not allowing people born in the state to amend their birth certificates to reflect their gender identity.

He had been a skeptic of nationwide injunctions even before the U.S. Supreme Court curtailed them last year and has written extensively on state constitutional law and how state supreme courts should not act in lockstep with the U.S. Supreme Court.

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