The Eighth Circuit is about to get even Trumpier
By the end of the year, a majority of the court’s judges could be Trump appointees.
Judge Bobby Shepherd of the U.S. Court of Appeals for the Eighth Circuit announced on Monday that he would take senior status, a form of semi-retirement for federal judges, when his successor is confirmed. Shepherd was appointed to his Arkansas-based seat on the court by President George W. Bush. Monday marked exactly 20 years since his confirmation on July 20, 2006.
Shepherd’s son — John Thomas Shepherd — was confirmed in April to serve as a lifetime judge on the U.S. District Court for the Western District of Arkansas.
Republican Senator Eric Schmitt of Missouri, which sits within the Eighth Circuit, celebrated the announcement on Monday — noting that Shepherd’s replacement on the bench will make this the first circuit court in America filled with a majority of Trump appointees. The Eighth Circuit covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
During his first term, Trump appointed four judges to the Eighth Circuit — Judges Ralph Erickson, Steven Grasz, David Stras, and Jonathan Kobes. Last month, the Senate confirmed Trump lawyer (and former Schmitt employee) Justin Smith to the court. And the nomination of Daniel Traynor, who has been nominated to replace Erickson, is currently pending on the Senate floor. Senate Majority Leader John Thune filed cloture on his nomination on Monday. Erickson will take senior status when Traynor is confirmed.
Two other judges on the Eighth Circuit — Judges James Loken and Lavenski Smith — are currently eligible to take senior status, and two others — Judges Steven Colloton and Raymond Gruender — will be eligible in 2028.
To date, every Trump nominee to the Eighth Circuit has been a white man. Only two judges of color, both Black men (including Lavenski Smith), have ever served on the court. Right now, only one woman and one Democratic appointee — Judge Jane Kelly, an Obama appointee and former public defender — serves on the Eighth Circuit. Kelly is only the second woman to ever serve on the court. That only one of the 11 active judges on this court brings any gender or professional diversity to the bench is deeply concerning.
Already, Trump has appointed 62 circuit court judges across his two terms, and they are overwhelmingly individuals who possess records of hostility to civil and human rights. More than 85 percent are white, more than three-quarters are men, and more than 65 percent are white men. None are Black. Only two of his 62 circuit court appointees, Judges Neomi Rao and Barbara Lagoa, are women of color.
In addition to Traynor, three other circuit court nominees — Benjamin Flowers (Sixth Circuit), Daniel Domenico (Tenth Circuit), and Anna St. John (Fifth Circuit) — are pending on the Senate floor and in the Senate Judiciary Committee. Those nominees won’t do much to diversify the appellate bench, but they will bring with them a bias and loyalty to Trump that should be disqualifying.
Judicial diversity — both demographic and professional — strengthens our democracy and has been shown to increase public trust in the courts, improve judicial decision-making, and provide for the opportunity for role models. It is critically important to have judges who respect and understand how the law impacts people’s lives and who can comprehend the broader consequences of their decisions. This, to the peril of our democracy, has never been a hallmark of Trump’s judicial selections.
The earliest that a nominee to this seat could appear before the Senate Judiciary Committee is likely mid-September following the Senate’s scheduled five-week recess (unless Chair Grassley holds recess hearings like he did in 2018). If things proceed under regular order — given holidays and scheduled recesses around the midterm elections — confirmation would likely not be possible until December.