The federal judiciary has offered a rare suggestion to President Donald Trump as he eyes another potential term reshaping the courts: when the next seat opens on the 10th U.S. Circuit Court of Appeals, maybe just leave it vacant.
That’s not a snub. It’s a formal recommendation from the U.S. Judicial Conference, the policymaking arm of the judiciary, which concluded that the Denver-based appeals court simply doesn’t need more hands on deck. The body—led by Chief Justice John Roberts—based its proposal on a persistently light caseload per judge.
In a report quietly released last week summarizing its closed-door March meeting, the Conference also recommended no new appointments for the next openings in the Southern District of West Virginia, the Eastern District of Michigan, and the District of Wyoming.
Don’t expect Trump to follow suit. He ignored the same advice in his first term, adding two judges to the 10th Circuit. President Biden did the same. There’s history here: presidents just don’t turn down lifetime appointments.
“There’s no political incentive for a president to pass on reshaping an appeals court,” noted Robert Luther, a former Trump-era White House Counsel staffer who now teaches at George Mason University. “It’s a power few willingly give up.”
And there may soon be opportunities: Judges Harris Hartz and Timothy Tymkovich—both appointed by George W. Bush—are eligible to take senior status, which would create new vacancies.
The Judicial Conference makes its “do not fill” recommendations every two years, using a formula that weighs caseloads against the number of judges. But experts say the recommendations are often symbolic, ignored by the political machinery they’re aimed at.
“It’s part stewardship, part ritual,” said Russell Wheeler of the Brookings Institution, who studies federal courts. “The Conference likely knows these get brushed aside.”
The 10th Circuit, which hears appeals from six western states, currently leans slightly blue with seven Democratic appointees and five Republicans. Its caseload has stayed consistent over the last decade—hovering around 1,700 to 1,800 filings per year.
But the “do not fill” list isn’t permanent. Courts are added and removed without much public explanation. The Western District of Oklahoma appeared on the list in 2019 and 2023, then vanished. This year, the Southern District of West Virginia took its place.
As Luther pointed out, “One major piece of legislation, or a sudden wave of retirements, and the math changes.” But until that happens, the judiciary’s message is simple: don’t fix what isn’t overloaded.
