Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Midwest

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 turn now to the Midwest.

Sixth Circuit

Court of Appeals

The Cincinnati based Sixth Circuit Court of Appeals serves the states of Kentucky, Michigan, Ohio, and Tennessee. The sixteen member court has been the site of notable squabbles between the judges, including allegations of judicial misconduct. Today, while the court has eleven Republican appointees and five Democratic appointees, the conservative-liberal divide is a closer nine to six, with Judge Julia Smith Gibbons occasionally voting with both blocs.

The Sixth Circuit also has a dramatic age divide between the conservative and the liberal wings. Of the six “liberal” judges on the court, four are already eligible for senior status. Additionally, a fifth, Judge Helene White, becomes eligible this year, while the sixth, Judge Jane Stranch, becomes eligible next year. In contrast, only two judges outside the liberal bloc are eligible for senior status, Gibbons and Judge Richard Griffin.

Despite the number of liberal judges who are eligible for senior status, there has not been an exodus in the Biden Administration. So far, no Sixth Circuit judge has officially announced their intention to take senior status or retire. Judge Bernice Donald, an Obama appointee who has been eligible for senior status since 2016, reportedly announced her move to take senior status in a letter to clerks in May. However, to date, no official announcement of the vacancy has been posted on the U.S. Courts website, and it is not unprecedented for a judge who initially decides to take senior status to subsequently change their mind.

At any rate, even without Donald, three Clinton appointees on the court have been eligible for senior status for the better part of a decade, and one or more of them could take senior status before the end of the Congress, as could Gibbons, White, or Stranch. The only eligible judge unlikely to take senior status under Biden is the staunchly conservative Griffin.

Kentucky

The Eastern and Western Districts of Kentucky are served by ten active judges, four appointed by George W. Bush, two by Obama, and four by Trump. Currently, only Judge Karen Caldwell of the Eastern District of Kentucky is eligible for senior status, although Chief Judge Danny Reeves becomes eligible on August 1, 2022. Neither is expected to take senior status in the near future.

Michigan

Michigan is divided into two judicial districts: the Eastern and Western. The Eastern District, based in Detroit and composed of 15 active judgeships, currently has two vacancies, vacated by Judge Victoria Roberts on February 24 and by Judge David Lawson on August 6. Biden has nominated Oakland County Judge Shalina Kumar to replace Roberts and Michigan Senators are currently accepting applications to replace Lawson, with a deadline of September 2. The four judgeship Western District has one vacancy, opened by Judge Janet Neff’s move to senior status March 1. Michigan Court of Appeals Judge Jane Beckering has been nominated to replace Neff. Both nominees have received a hearing before the Senate Judiciary Committee.

Additional vacancies may also be possible. Judges Denise Hood, Paul Borman, and Thomas Ludington on the Eastern District and Judge Paul Maloney on the Western District are already eligible for senior status. Additionally, Judges Sean Cox, Mark Goldsmith, and Gershwin Drain will become eligible for senior status before the end of the 117th Congress.

Ohio

Bisected into two judicial districts, Ohio federal trial courts are poised for a significant turnover. The eleven judgeship Northern District of Ohio currently has three vacancies. Ohio Senator Sherrod Brown gathered applications to fill the vacancies in February with an application deadline on March 16. So far, no recommendations have been made public and no nominations have been announced. Additionally, Chief Judge Patricia Gaughan and Judge John Adams are eligible for senior status although both have disclaimed any interest in taking it.

The Southern District has no current vacancies but Chief Judge Algernon Marbley and Judge Judge Edward Sargus are already eligible for senior status, while Judge Michael Watson will reach eligibility on November 7 and Judge Timothy Black will hit the threshold in 2022. One or more of these jurists may move to senior status before the end of the 117th Congress.

Tennessee

The citizens of Tennessee are served by three judicial districts: the Eastern, Middle, and Western Districts. None of the three districts currently have any vacancies, although there are several judges who are eligible for senior status who may take senior status before the end of 2022: Judge Thomas Varlan on the Eastern District; Judge Aleta Trauger on the Middle District; and Judges Stanley Anderson and John Fowlkes on the Western District. Additionally, Chief Judge Travis McDonough on the Eastern District is a possibility to be elevated to the Sixth Circuit to replace Donald, which would allow Biden to replace him in turn.

Seventh Circuit

Court of Appeals

The Chicago based Seventh Circuit Court of Appeals is home to many of the federal judiciary’s intellectual heavyweights. Despite having an 8-3 Republican appointee majority, the court is generally considered to be more moderate than conservative. Biden has already named one judge to the Seventh Circuit, Judge Candace Jackson-Akiwumi. He may have the opportunity to name others as four of the court’s eleven judges are eligible for senior status: Judges Frank Easterbrook, Michael Kanne, Ilana Rovner, and Diane Wood. Additionally, two more judges reach eligibility next year, Chief Judge Diane Sykes, and Judge David Hamilton. While Easterbrook and Sykes are unlikely to move to senior status in the near future, any of the other four could choose to vacate their seats before the end of the 117th Congress.

Illinois

Represented by Senate Judiciary Committee Chairman Richard Durbin, Illinois saw seats filled fairly quickly under the previous few Administrations and largely avoided the lingering vacancies that plagued other states. Currently, there is no vacancy on any of the Illinois District Courts and only one future vacancy is teed up, from Northern District Judge Matthew Kennelly’s move to senior status in October. Additional vacancies, however, are possible, as Judge Sue Myerscough on the Central District and Judges Rebecca Pallmeyer and Charles Norgle on the Northern District are eligible for senior status.

Indiana

Indiana is served by the Northern District and the Southern District, each with five active judgeships. Currently, there is one judgeship vacant in the Northern District, created by Judge Theresa Springmann’s move to senior status in January. There is also a future vacancy scheduled in the Southern District when Judge Richard Young moves to senior status upon confirmation of a successor. While Indiana’s Republican Senators accepted applications to replace Springmann in 2019, no nomination has been made as of yet. However, President Biden named U.S. Attorneys to both of Indiana’s judicial districts as part of his first batch of nominees, suggesting that judicial nominees may also be in the offing.

Wisconsin

Divided into the five judgeship Eastern District and the two judgeship Western District, Wisconsin currently has one judicial vacancy, vacated by Judge William Griesbach’s move to senior status on December 31, 2019. So far, no nomination has been put forward to replace Griesbach, although Wisconsin Senators Tammy Baldwin and Ron Johnson recommended four candidates to fill the vacancy in June: state court judges Tammy Jo Hock, William Pocan, and Thomas Walsh, and federal public defender Krista Halla-Valdes. Given the recommendations, a nominee is likely in the Fall.

Additional vacancies may also be possible. Both Judges Joseph Stadtmueller and Lynn Adelman are eligible for senior status and may choose to make the move this Congress.

Eighth Circuit

Court of Appeals

With ten judges appointed by Republican Presidents and only one appointed by a Democratic President, the Eighth Circuit is widely considered one of the most conservative courts in the country. This effect is magnified by the senior judges on the court, the vast majority of whom are also deeply conservative. If there is a bright side for liberals, it is that the lone Democratic-appointee on the court, Judge Jane Kelly, is also one of the court’s younger judges. The Eighth Circuit is currently the only court of appeals that has not had a vacancy open during the Biden Administration. If one opens, it’ll likely be due to the moves of Judges James Loken, William Benton, or Bobby Shepherd, who are the only judges currently eligible for senior status.

Arkansas

Arkansas, divided into the Eastern and Western Districts, has eight trial judgeships in total. Currently, those judgeships are filled by six appointees of President Obama, one of President George W. Bush, and one of President Trump. The only judgeship set to open this Congress is Judge Paul K. Holmes’ seat on the Western District of Arkansas, which is set to open on November 10. While Holmes gave plenty of warning, announcing his move on December 1, 2020, no nominee has been put forward by the White House. This is likely because the White House has been unable to reach an agreement with Arkansas Senators John Boozman and Tom Cotton. While, during the Obama Administration, Boozman supported and returned blue slips for five District Court nominees, including Holmes, Cotton has yet to approve any Arkansas nominee from a Democratic President. As such, it remains to be seen if a nominee can be put forward to fill the vacancy.

Iowa

The judges on the Northern and Southern Districts of Iowa are comparatively young, with four out of five being under the sixty (and two under the age of fifty). The lone exception is Judge John Jarvey who has announced his intention to retire on March 18, 2022. Given Iowa Senator Chuck Grassley’s role as Ranking Member of the Senate Judiciary Committee, the White House is likely to consult with him on Jarvey’s replacement. So far, no recommendations have been made public.

Minnesota

The U.S. District Court for the District of Minnesota has one vacancy, created when Judge Joan Ericksen moved to senior status on October 15, 2019. Senators Amy Klobuchar and Tina Smith sent a shortlist of candidates to fill the vacancy to the White House in early January but no nomination has been officially submitted yet. To compound the issue, additional vacancies may soon open as Chief Judge John Tunheim, who is eligible for senior status, steps down as Chief next year and as Judge Susan Nelson hits eligibility later this year.

Missouri

The Eastern and Western Districts of Missouri share an interesting quirk: they have sixteen active judgeships between them but only fourteen active judges. This is because two of the judges, Judge Rodney Sippel and Judge Brian Wimes, sit on both the Eastern and Western Districts. Counting each judge only once, the Districts are composed of eight Obama appointees, three Trump appointees, two Bush appointees, and one Clinton appointee. While there are no current vacancies, Sippel and Judge Henry Autrey are both eligible for senior status.

Nebraska

While currently without a vacancy, the District of Nebraska has an informal policy of judges moving to senior status as soon as they hit eligibility in order to best handle the caseload. The first judge to hit that eligibility threshold is Judge John Gerrard, who will hit it by the end of 2022.

North Dakota

With the two judgeships in North Dakota having been filled recently by President Trump, it’s extremely unlikely that either will open this Congress.

South Dakota

The three judgeship District of South Dakota is currently composed of two appointees of President Obama and one of President Clinton. It is set to have a vacancy open on October 1 when Judge Jeffrey Viken moves to senior status. In addition to Viken, Judge Karen Schreier became eligible for senior status on July 29 and may make the move as well. In April 2021, South Dakota Democratic Party Chairman Randy Seiler submitted three names to fill the vacancy: former Congresswoman Stephanie Herseth Sandlin; Cheyenne River Sioux Tribe Attorney General Tracey Zephier; and federal prosecutor Sarah Collins. A few weeks later, Herseth Sandlin took her name out of consideration. No nominee has been named to replace Viken yet.

13 Comments

  1. I hope president Biden goes bold to replace Judge Bernice Donald. There should be a wealth of young progressive African Americans that should be in the mix for that seat.

    I’m happy to hear senator Portman is working in good faith to fill the Ohio vacancies. With him retiring after this term I expect those seats to be filled without incident.

    With president Biden inheriting an all white Seventh Circuit, there is a great chance to transform that appeals court with the advanced ages & years of service of a number of judges on the court. Specifically in Illinois, hopefully we can see a few African American, Hispanic and/or Asian American young progressives put on that court during the Biden presidency.

    If the Indiana Republican senators started the application process of filling the vacant seat in 2019, I hope they restarted the process as those recommendations would probably not be acceptable for president Biden. I’m not expecting a progressive but at least a left of center nominee.

    I am still pleasantly surprised senator Ron Johnson worked in good faith to get a package of recommendations to The White House. I’ll feel more comfortable when he turns his blue slip in. I believe Krista Halla-Valdes is the best of the four recommendations.

    The Eighth Circuit is an absolute disaster. Hopefully we get at least two vacancies during this term but it will take two or three terms of Democrat presidents to likely flip that court to a Democrat majority.

    I don’t know why it is taking so long for the Minnesota nominee to be named. This is why I wish we still had senator Franken instead of senator Tina Smith as he was laser focused on the judiciary. Even still, senator Klobachar should have had recommendations turned in much earlier.

    Vacancies in Arkansas, Missouri & Texas are the states I expect to test if chairman Durbin will allow senators not working in good faith to unlimitedly block district court vacancies by with holding their blue slips. Between those three states, there are four senators on the judiciary committee. I see little chance of any of those three states to get both senators blue slips turned in for any acceptable nominee.

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  2. If Bernice Donald does go through with her announcement, one possible candidate would be former U.S. Attorney Edward Stanton, who Obama nominated for District Judge for Western Tennessee. Both Senators at the time (Bob Corker and Lamar Alexander) willingly supported the nomination, but Stanton never got a vote.

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  3. Back to South Dakota. Supporting a progressive like Tracey Zephier would be a major concession for the two Republican Senators who have the Blue Slip option. If they were to agree to this, the White House would be expected to give them something in return. I wonder where the negotiations are going?

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    • I agree. I actually wrote Edward Stanton for any Tennessee vacancy on the 6th circuit back in January on the “Here Come the Retirements” article on this site. With President Biden not naming any black men to the appeals court as of yet (Although he has named four black women), he would be a good choice for the first one.

      I think the South Dakota vacancy depends a lot on how serious chairman Durbin is about not letting Republican senators not working in good faith unilaterally use their blue slips to block reasonable nominees or no nominee at all.

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      • An observation relevant to Tennessee. If a District Court seat opens in Western Tennessee, state Appellate Judge Camille McMullen would be a solid choice. A former Federal prosecutor, she’d be the first black woman on that court. She could also be a possible candidate for the 6th. Circuit and no one has any problems with her that I’m aware of. But Edward Stanton is more of a known quantity and no one I know of has any problem with him, either.

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      • Judge Camille McMullen being a former Federal prosecutor might not be the type of background president Biden is looking for but being Tennessee it may be the best he can get for a district court seat with blue slips being in play. Since she is an African American women born around 1971 & a current state judge I’m sure she will get a look at.

        But for the 6th circuit court vacancy I would hope is a more progressive & even younger nominee. Blue slips will not have any role in that process. Edward Stanton is a good possibility since we have yet to have an African American man nominated to the appeals court in over 5 years.

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  4. Just as Minnesota finally announced Katherine M. Menendez (Who seems to be a really good choice) for the vacant district court seat, we now have a second vacancy announced. Susan Richard Nelson has announced she will step down at teh end of the year. Hopefully we get a second nominee by hte end of the year if senators Klobachar & Smith use a name from the list they just used that was not recommended or nominated.

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  5. Just as Minnesota finally announced Katherine M. Menendez (Who seems to be a really good choice) for the vacant district court seat, we now have a second vacancy announced. Susan Richard Nelson has announced she will step down at the end of the year. Hopefully we get a second nominee by the end of the year if senators Klobachar & Smith use a name from the list they just used that was not recommended or nominated.

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