We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We start with the states in the Northeast.
Court of Appeals
With just six active judgeships, the First Circuit is the smallest court of appeals in the nation, and the only geographically based appellate court that President Trump did not name a single judge to. The First Circuit tends to cycle between periods of significant turnover and periods of relative stability. For example, President George H.W. Bush named four judges to the court in four years in office. President Clinton then named two over eight years and President George W. Bush named just one in his eight. President Obama then replaced half the court in his two terms, followed by President Trump who named none.
Today, the court has five active judges: one appointed by Clinton; one by Bush; and three by Obama. A sixth judgeship, vacated by the death of Judge Juan Torruella last year is currently vacant, with a nominee, U.S. District Judge Gustavo Gelpi, waiting for a final confirmation vote on the Senate floor. However, a second vacancy is already teed up as the Rhode Island based Judge Ojetta Rogeriee Thompson is taking senior status on December 31, 2021. Rhode Island senators have already set up a selection process with the deadline set on August 4. This timeline could yield a new nominee by October 2021 and potentially even a confirmation by the end of the year.
More vacancies are possible this Congress. Judge Sandra Lea Lynch, appointed by President Clinton, has been eligible for senior status since 2011. Chief Judge Jeffrey Howard, the sole Republican appointee on the court, is also eligible for senior status but will likely stay active until his term as Chief concludes next year. However, even if neither moves to senior status, Biden will still have a chance to replace a third of the court.
The three judgeship District of Maine is unlikely to see much turnover this Congress, as the first judge to hit eligibility for senior status, Chief Judge Jon Levy, won’t hit it until 2024. His colleagues Nancy Torresen and Lance Walker have much longer to wait: until 2025 and 2037 respectively.
The 13-judgeship District of Massachusetts is currently three judges short, with a nominee, Judge Angel Kelley, pending to the oldest vacancy. Kelley’s nomination was the product of a January 2021 convening of a Bipartisan Advisory Committee by Massachusetts Senators Elizabeth Warren and Ed Markey. The Committee was reconvened in March to produce nominees to replace Judge William Young, who was leaving active status. Presumably, the Committee has recommended candidates to fill the remaining vacancies on the court, which means that nominees may be forthcoming in the Fall.
Of the remaining ten active judges on the court, four are already eligible for senior status and a fifth, Judge Timothy Hillman, becomes eligible next year. As such, it is possible that more vacancies could open before the end of this Congress.
The District of New Hampshire currently has one vacancy, opened by Judge Paul Barbadoro’s move to senior status on March 1. So far, there has not been a public announcement from New Hampshire’s senators on the selection process, and no nomination has been made.
Puerto Rico (not technically in the Northeast but covered under the First Circuit)
The District of Puerto Rico currently has one vacancy out of seven judgeships, but two others are poised to come open. Judge Gustavo Gelpi has been named to the First Circuit and is pending confirmation, and Judge Francisco Besosa has announced his intent to take senior status on January 1, 2022. The resulting three nominations, when they come, will encompass the largest turnover on the court since 2006 when Gelpi and Besosa were appointed. The third appointee from 2006, Judge Aida Delgado-Colon, is also eligible from senior status. If she so moved, Biden would have an opportunity to name a majority of judges on the court.
Like it’s counterpart in Maine, the District Court for the District of Rhode Island has three judgeships, all of whom are not eligible for senior status this Congress. As such, no vacancies are expected this Congress unless Judge Mary McElroy, a longtime public defender and Democrat named to the court by Trump, is picked to replace Thompson on the First Circuit.
Court of Appeals
The Second Circuit, based in New York, is one of the most prestigious court of appeals in the federal system. The Court, which has two vacancies, is closely divided ideologically. The active judges on the court are split 7-4 in favor of the court’s conservative wing, but this is mitigated by the senior judges, who sit frequently and include many prominent liberals. Biden has already named Judge Eunice Lee to the court and both the pending vacancies have nominees: voting rights attorney Myrna Perez and Vermont Supreme Court Justice Beth Robinson.
Setting aside Lee, the active judges on the Second Circuit include five appointees of President Trump (who are all years away from senior status), Chief Judge Debra Livingston (who is expected to serve out her term as Chief until 2027); and Obama appointee Raymond Lohier (who doesn’t hit eligibility until 2030). While it would be tempting to consider Judges Jose Cabranes and Rosemary Pooler, the last remaining of nine judges appointed to the Court by Bill Clinton, as likely moves to senior status, the judges (both octagenarians) have resisted senior status for years despite being eligible to do so. A more likely candidate to move to senior status is Obama-appointee Judge Susan Carney, who hits eligibility in September 2021.
The District of Connecticut currently has three vacancies out of eight judgeships. However, unlike most other states, all of Connecticut’s vacancies have nominees: U.S. Magistrate Judge Sarah Merriam; state judge Omar Williams; and federal prosecutor Sarala Nagala. The expected confirmation of the three this Fall would restore the court to a full complement of eight. However, Chief Judge Stefan Underhill is also eligible for senior status and may take it, creating an opportunity for a fourth appointment (It’s just as likely that Underhill serves out his term as Chief, which ends in 2025).
One of only three states to be divided into four federal judicial districts, New York is currently bogged with a number of judicial vacancies. During the Obama Administration, Senators Chuck Schumer and Kirsten Gillibrand split up making recommendations to fill vacancies and each publicized names as they were sent to the White House. So far, Schumer has only made one district court recommendation public: voting rights attorney Dale Ho for the Southern District of New York (Ho has yet to be nominated).
Meanwhile, vacancies remain, with only the Western District of New York having a full complement of active judges. The Southern District of New York, one of the busiest courts in the country, is short four judges, with two of the vacancies dating back to 2018. The Eastern District of New York, despite having around half as many judgeships as its neighbor, also has four vacancies. The Northern District has only one vacancy, but, dating back to 2016, it’s one of the oldest vacancies in the nation.
Additionally, more vacancies may open in the coming year. Currently, three judges are eligible for senior status but have held off: Judge John Koeltl; Judge David Hurd; and Judge William Kuntz. Next year, three more become eligible: Judges Kiyo Matsumoto; Roslyn Mauskopf; and Glenn Suddaby.
Vermont is one of only three states in the country to be served by only two district court judges (Idaho and North Dakota being the others). With both of Vermont’s judges a few years from eligibility for retirement, it is unlikely that any vacancies will open on the district court this Congress.