Barring the unexpected, Judge Ketanji Brown Jackson will be confirmed to the Supreme Court this week, capping a ten week nomination and confirmation process since Justice Stephen Breyer’s retirement announcement in late January. While the Administration would likely take a (deserved) victory lap over Jackson’s confirmation, the most crucial period for securing Biden’s judicial legacy begins after.
While the Biden Administration came into office with comparatively few judicial vacancies to fill, a rash of Democratic appointees moving to senior status has created an opportunity for the Administration to leave a substantial imprint on the lower courts. Jackson’s confirmation will leave 24 lower court nominees left before the Senate, while pales in comparison to the 108 pending judicial vacancies listed on the U.S. Courts website. The situation is even more significant, given that many confirmed vacancies, including those by Third Circuit Judge Thomas Ambro, Ninth Circuit Judges Andew Hurwitz, Margaret McKeown, and Sidney Runyan Thomas, and D.D.C. Judge Colleen Kollar-Kotelly, are not public on the site yet. As such, the administration has around 90 vacancies on the federal bench with no nominees pending. Given that, fourteen months into his Presidency, Biden has yet to send 90 judicial nominees to the Senate, the Administration will have to move fast to have any hope of filling a substantial number of these vacancies.
Consider that the Administration has failed to name a single lower court judge to the bench since Judge Stephanie Davis was tapped two months ago. This is likely because the White House is strategically choosing to hold lower court nominations, including those that may be controversial, in order to avoid muddying the waters for Jackson. This means that the Biden Administration’s 82 nominees submitted to the Senate so far are slightly lower than the 98 judges nominated by President Bush and the 87 nominated by President Trump. Biden is particularly behind on circuit court nominations, having nominated 20, while Trump had made 25 as of this point in his Presidency, while President Bush had nominated 31. Even President Obama, rightfully criticized for a slow pace on nominations, had named 18 appellate nominees by April 1 of the second year of his presidency. With the Senate having confirmed 15 judges, only five of the 24 appellate vacancies currently pending have a nominee.
On the confirmation side, the Biden Administration has run far ahead of its immediate predecessors. For example, the Biden Administration has seen 58 judges confirmed so far, and the Trump Administration only saw 29 judges at this point in its Presidency, while the Obama Administration only saw 19. However, both prior Administrations had run behind their predecessors. Both the Clinton and Bush Administrations, for example, had seen 45-50 judges confirmed by this point in their Presidency, just slightly behind the Biden Administration.
However, on average, a judicial nominee in the Biden Administration has taken 4 months from nomination to confirmation. This means that, in order to be confirmed before the August recess (after which many Democratic senators may be absent campaigning in their home states), nominees need to be sent to the Senate now. Additionally, any nominees sent will likely also run into the limited space in Senate Judiciary Committee hearings, which typically occur every two weeks and include 4-6 nominees each. All this makes the next month or two crucial for nominations. Any nominee nominated later than early May may not see confirmation this year.
To be fair, none of this to say that the Biden administration hasn’t had a significant impact on the federal judiciary. One could argue that, given the bare majority they control, Democrats have outperformed expectations. However, the Administration now faces both an opportunity and a ticking clock. Due to a large number of judges moving to senior status, Biden could easily outperform the 30 judges that Trump was able to confirm to the courts of appeals in his first two years. However, for the Biden Administration to cement its judicial legacy, it will need to urgently snap back onto the lower courts. The first step might be if large batch of nominees, including 5-6 appellate picks, hits the Senate after the Jackson confirmation this week.
The Vetting Room 
Thought for sure the DE district court seat would go to Chris Rowland, as he’s young and would be one of the only Gay judges on the bench or Chris Burke, a long time DE magistrate judge.
Am also surprised the first nominee in a red state is Iowa and not Idaho or Alaska, which badly need judges.
As to the other point some folks have made, the sad reality is there was no way in two years to make up what Trump and McConnell were able to do in four but I would still like to see us fill as many seats as we can, especially Circuit court ones.
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I’m also surprised that there are no nominations from Idaho. There already was a panel being interviewed.
Biden’s approval ratings have fallen lower than any of his allies had expected. I think perhaps that’s making the White House more skittish about judicial nominations.
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I don’t think Biden’s approval numbers has any effect on judicial nominations…….Even if the WH nominates all centrists, that, in and of itself won’t do anything for his approval…..Also, if he nominates very progressive people, it won’t do much for his approval either other than make the base, who already votes straight D tickets anyway, happy…
So the WH has absolutely nothing to lose by nominating progressives and nothing to gain by nominating centrists……Might as well stick w/progressive nominees….
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The administration needs to hurry up because there will probably by zero circuit confirmations if the GOP takes back the Senate. Biden’s approval rating is in the toilet because of inflation and crime – issues which the administration perfers not to think about.
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Throwing a name out there as another possibility to fill KBJ’s seat on the DC Circuit — Adam Pulver. Great public interest resume including ACLU, the Department of Labor, and currently Public Citizen. Former federal clerk, would be the first LGBTQ judge on the court, and best of all, he’s 38.
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@Erick
I never heard of Adam Pulver but from what you wrote he would have been light years better then who we ended up getting in Florence Pan.
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https://platform.twitter.com/widgets.js
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While I would love another vacancy on the 9th circuit, I do not agree with it occurring on the condition of the judge getting to pick their own successor. I do t believe the short term vacancy is worth the long term precedent that would be set. Especially not for a replacement norm around (1971) in their 50’s. No thanks, the judge can stay on the bench.
(https://thenevadaindependent.com/article/9th-circuit-judge-urges-cortez-masto-rosen-to-back-ags-wife-as-replacement)
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I would add in Rawlinson’s case she is anti-LGBT bigot.
What if the person she wants replacing her is one as well?
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Honestly even if the person she was demanding was somebody I liked I wouldn’t set the precedent. I would love nothing more then to get her off the bench with enough time to confirm her successor prior to the midterms but you can’t let judges pick their successors. That’s just a dangerous precedent.
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That article shows that Biden is looking to fill seats that aren’t vacant.
In the last administration they were doing the same thing : replacing judges with their former clerks.
It was that practice that induced justice Kennedy to retire to make way for Brett Kavenaugh.
I would nominate the husband his credentials are impressive. He has political experience and he’s a state attorney general.
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I was thinking the same thing. The husband seems to be the one that should be pushed. I don’t know much about him but if he’s Nevada’s AG I’m sure he’s solid. But if he’s the same age as the wife then I would push for somebody younger. Nevada has plenty of good candidates. We shouldn’t need to put somebody in their 50’s but if we did I would rather district court judge Richard Franklin Boulware.
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Speaking of people that need to consider retiring…
(https://www.sfchronicle.com/politics/article/dianne-feinstein-senate-17079487.php)
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Judge Johnnie Rawlinson
I agree with Dequan. No judge should get to dictate who their successor should be, and hold the president/senators hostage to that decision. (Obviously, as with most things in life, I can think of very few exceptions I’d be willing to allow.) Sure, judges may offer their suggestions — I think that’s usually the case anyway, even if we don’t hear about it a lot. But outright demanding a preferred nominee? Crazy.
I fear that this practice (insofar as it is one) will only become more common. This is the second time since 2021 (King in WV). I know that Rawlinson hasn’t actually announced her retirement, but I am still counting it because, let’s face it, it sounds like she means business. Lobbying the WH and senators? How Clyburn-like! With the broken confirmation process, expect it to become even more common, unfortunately.
Dianne Feinstein
I totally get it, but I am not family with California’s special election laws. I know that the governor can appoint her successor if she retires before 2024, but will that appointee be required, AT THIS POINT, to run in a special election this year? I am firmly in the school of avoiding unnecessary elections as much as possible, even if you think it’s a sure bet. Think Alabama 2017, Georgia 2021, Mass. 2010). I know that some states require an appointed US senator to stand in the next regularly scheduled election if the appointment happens at a certain time (days, months) from the election.
So what I am saying is, Feinstein’s inability to continue to serve hasn’t negatively impacted (besides delaying) final votes on legislations or nominations. As long as she can continue to make it to the senate floor to vote, she should continue to serve until the need for a special election passes. I do not want to risk another senate seat this November. Ironically, Feinstein first won her seat in a special election, the same time as Barbara Boxer (year of the woman). If she resigns now, her replacement may have to run with Padilla in November — mirror image of 1992.
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She’s doing it because the previous administration was doing it. Have you noticed that 9th circuit judges are going on senior status rather than leaving the bench?
The retired judges get paid whether they stay or leave. They can
keep their pay and get a job elsewhere for more pay.
The California Senate seats are safe. I don’t think we have any Republicans in state offices.
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I actually asks the question in the past why would a federal judge go senior status instead of retire. The answer made sense. While it is true if you retire you get the same pay for life without taking on any cases, the difference is if you go senior status you get pay increases whenever they occur (Apparently they happen fairly often). If you retire you do not get those pay increases. So that, along with some judges really loving their job & not wanting to completely give up being a judge goes into their decision.
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These retired judges can triple their salaries easy.
A big law firm would shell out some serious dough for a retired Federal judge .
After Abdul Kallen leaves see where he lands. He can get as General Counsel almost anywhere he wants Coca Cola , Home Depot and those jobs have real perks.
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In the GOP’s current form, yes the California Senate seats are safe. For the GOP to actually have a chance to take a California senate seat, they need to nominate a moderate who tows the line between being pro-Trump and anti-Trump.
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Rawlinson should at least give Biden 3 or 4 people to choose from if she wants her input to be considered in picking her successor. That’s about how many recommendations the Senators hand over. She should definitely not be permitted to pick whoever she wants but if she can recommend 4 people and agrees to go senior if one of the 4 is confirmed to replace her, I think that’s a deal.
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I guess I’m just spamming comments now, but I recently realized this regarding Rawlinson’s nomination and confirmation process:
Strom Thurmond permitted the confirmation of a Black woman by a Democratic president in a Republican senate in violation of the made up “Thurmond Rule” (an informal rule where nominees are no longer considered for roughly 6 months leading up to the election if the president and senate are of different parties).
Now though I wish it were only 6 months, because McConnell would keep a judicial seat open for 20 years if that’s how long it took for Republicans to regain the presidency.
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With continued vacancies, I’m going to do some speculation. In Utah, David Nuffer is going Senior in a week. I’m unable to find out who’s expressed interest (that’s not usually made public). But based on past nominations, I believe the Biden Administration wants to nominate Cecelia Romero. Mitt Romney would probably agree to it, but he’ll likely want some kind of concession in exchange. Democrats definitely don’t want to alienate him after his vote for KBJ.
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Two of the three GOP senators with yes votes for KBJ have vacancies in their states for district court seats. I wouldn’t be surprised to get a consensus nominee for both Utah & Alaska by the Summer. Hopefully senators Mike Lee & Dan Sullivan will agree to turn in their blue slips.
At the rate we’re going, we probably will get nominees for both of those red states before nominees to all the vacancy seats in Massachusetts, California, Oregon & Puerto Rico. 451 days into the administration & still not able to fill those seats. I don’t wanna hear crap from Elizabeth Warren about ADDING seats to the Supreme Court until I see nominees for the 3 vacant district court seats & 1 appeals court seat from her home state…smh
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In Wyoming, Nancy D. Freudenthal is going Senior in June. Again, I don’t know who’s interested. The name I’m watching is Teresa McKee. based on other nominations by the Biden White House.
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In the case of Teresa McKee, with her being born around 1954, I would need other possible nominees to choose from or I would advise Biden to leave the seat vacant for new. Either Republicans take control of the senate & then you can nominate a horrible or old nominee or Democrats keep control & hopefully Durbin gets rid of blue slips altogether. Either way I would waste no SJC & senate floor time on this seat unless it’s a decent nominee.
The Utah seat is different. As mentioned, Romney should get more leeway than most GOP senators. While Cecilia Romero is nobody that blows my socks off, at least she was born around 1974, has a background in disability rights & is President of the Native American Law Students Association.
Michalyn Steele also specializes in Native American law, but he was born c. 1970. Lindsay Barenz c.1977 would also be a good nominee as would Monica Maio c. 1973.
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Regarding Lindsay Barenz, I think she’d be a great pick, but I tend to doubt she’d take the job since she JUST started her current job in January. For Wyoming, my top choice would be Leah Schwartz (1985), a former clerk to Freudenthal and Gregory Phillips, but I tend to doubt she’d get blue slips from Wyoming’s Senators.
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@Ethan
Yea I agree. I just don’t think we need to waste time on these deep red district court seats until after the midterms. The worst-case scenario is the Republicans gain the majority & you have to cut a deal then, when no liberal nominees would be able to get confirmed anyway. I would rather them spend time on all circuit court seats, district court seats in blue states &red states where the senators work in good faith such as the case with Iowa.
On another note, I love your chart on potential future federal judges you sent on a past post. I check it often. I noticed there is no tab for the Federal Cricut. Do you have some names to make a tab for that? I would be interested to see some names floated as I believe we will have at least one other vacancy before the end of the year with the advanced ages of so many judges on that court.
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I don’t have a tab for federal circuit. I think there are too many possibilities to keep track of.
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Yea I think most lawyers from the state of Delaware has to be considered a possibility for the Federal Circuit… Lol
I sometimes wish Biden would nominate somebody like Melissa Murray to the Federal Circuit. While she would get some harsh pushback for the 2nd circuit, maybe she could pass easier to that court. Once on there, your a circuit court judge & have stronger consideration for SCOTUS at a later time.
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While I disagree with your heavy focus on age when it comes to nominees, I agree here that Biden would be wise to focus on other vacancies if that would be the pick for this particular seat. She is definitely qualified so I’d like to see her get picked at some point in the next couple of years (assuming she wants it).
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@Frank
Funny thing is outside of judges, I’m a fighter against age discrimination… Lol
But when it comes to judges sadly age matters. Life time texture combined with the youth of the conservatives Trump put on the bench forces me to focus on age. That’s why I give the two circuit court nominees Biden announced last week a poor grade, albeit judge Lee (54) much lower then judge Mendoza.
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I’m wondering what’s going on in Western Louisiana? There are two vacancies on that court. I was sure that former U.S. Attorney Stephanie Finley would be nominated. She’s qualified and doesn’t seem to be controversial. Neither of Louisiana’s Senators is considered out there, one voted to impeach Donald Trump. But no nomination for either. Does anyone know what’s going on?
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One of the two Louisiana vacancies just occurred a couple months ago. It was a VERY unexpected vacancy, a Trump appointee that retired early due to disability.
Yes I agree former Obama nominee Stephanie Finley who never got a vote & would be a good nominee to consider. My guess is the administration is looking for a younger nominee & the Louisiana senators are probably pushing for a 1 for 1 deal. I hope the administration denies that deal if so. I’d rather the seats remain vacant & they focus on the circuit court vacancy which they don’t need the senators blue slips for.
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Wouldn’t it be better for the Democrats to make that deal rather than to see both vacancies filled with Federalist Society nominees assuming that Trump or another Republican wins in 2024? As we have discussed in the past, the Republicans don’t really care about filling blue state district court vacancies.
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@Frank
If those were the two choices then us, a 1 for 1 deal would be best. I don’t believe those would be the only choices however. If you wait until after the midterms & the worst case scenario of the Republicans winning the majority happens, I think you make the 1 for 1 deal then, with two years left in the Biden presidency. I don’t think the Louisiana senators would leave both seats vacant for over 3 years on the hopes of a Trump win. So in my opinion you lose nothing by waiting until after the midterms here. You lose 2 SJC slots & floor time that could go to more progressive nominees while the Democrats have the majority of you waste time on a 1 for 1 deal now.
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I think if you are a Democrat, you have to assume that nearly no new judges will get through under a McConnell led Senate. Thus, I would be willing to make a 1-1 deal if I were Biden.
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I understand that thinking. I would agree with you about doing a 1 for 1 deal now only if every blue state seat is filled before the midterms. My point is judging by the pace of nominations, SJC hearings & floor votes between Monday 5pm to Thursday 3pm, I see no chance of every blue seat & circuit seat getting filled before the end of the year. So I would rather save the floor time on confirming those nominees who will be significantly to the left of any 1 to 1 nominee from Louisiana.
Now if any of the three circumstances above change then that’s a different story. But I don’t see any large batches from Biden, SJC hearings during any recess weeks or Schumer scheduling the senate in session between Thursday afternoon to Monday afternoon. So that’s why I’m more focused on circuit court & blue district court seats this year. Hopefully at least one of those circumstances do change but I doubt it sadly.
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@Frank I agree that McConnell will probably refuse to fill these seats with Biden nominees after the midterms, no matter whether there is a 1 for 1 deal or not.
I still agree with Dequan that these seats aren’t worth the time filling right now though – district court judges don’t set any precedent, and to be honest, filling seats in a deep red state like Louisiana isn’t going to fix the problems with the judiciary. Especially since Louisiana is in the arch-conservative Fifth Circuit, any Democratic appointees’ good decisions will probably be overruled anyways.
However, Dennis’s seat in Louisiana should 100% be filled before the midterms. If the administration were smart, it would focus first and foremost on filling appeals courts seats from here on out (though given their lack of urgency and general ineptitude, I highly doubt they even know how to prioritize properly).
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The White House should have filled the 3rd Circuit Delaware based seat before filling the Delaware district court seat…..
Too many circuit court vacancies, some that have been unfilled for quite some time ie; 5th and 10th Circuit
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I would disagree, because the DC has a high workload and not a single senior judge to absorb, the position is on the judicial emergency list.
Though there is much policy inside, the proper work of the courts should be the priority, in red and blue states.
For me the filling of the 5th Circuit vacancy in Louisiana should be the highest priority, because of the age of Dennis any day a critical situation might occur on this highly problematic Circuit.
Means not, that at the 3rd Circuit of elsewhere.
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More speculation here. In Nebraska, John Gerrard is going Senior next year, but announced over a year early. Does he have someone in mind? I don’t know. The Biden Administration would no doubt like to nominate Yvonne Sosa. But even though neither of Nebraska’s Senators is a Trump booster, I don’t think they’d sign off on her. Any names in the mix?
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My thoughts on the Rawlinson matter is that she has tainted the nomination process IF she does take senior status.
Berna Rhodes-Ford would have been a fine replacement but between what Rawlinson did and that the fact Rhodes-Ford choose to weigh in on as well, it simply makes the whole process look corrupt.
Which is a shame since Rhodes-Ford would make a fine replacement for Rawlinson, whom is one of the judges I really wanted to see take senior status because unlike many of the other judges we’ve seen take senior retirement under Biden, she is an anti-LGBT bigot and the less of them we have in active service on the courts, the better.
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I had a change of heart after reading that judge Rawlinson is reaching out to senators on a potential nominees’ behalf. Even more troubling is Rhodes -Ford promoting herself to the media.
It’s unusually unbecoming of a prospective judge,
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I don’t see the big deal about the Rawlinson thing..
In the last admin, judge Michael Kanne did the EXACT same thing….He actually took senior status, but his replacement wasn’t who he wanted, so he changed his mind and stayed on..
https://en.wikipedia.org/wiki/Michael_Stephen_Kanne
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Correct, Judge Kane & King did similar things as judge Rawlinson. My thoughts on the manner were more geared towards The White House then they were the judges. I actually agree with Trump I’m not giving in to judge Kane. While the law clerk he was suggesting probably would have been a young conservative in the bench for decades, it’s setting the precedent that’s the biggest issue. Same for Biden. The person judge King wanted was actually the person I had picked for the seat king before he even mentioned stepping down. But you can’t nominate him because the retiring judge told you to.
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No Rawlinson isn’t the first judge to have done this but she is the first one to make her demands public.
That is as improper as it gets and I honestly think this is something that should get her a rebuke from NV Democrats.
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Not only about judicial nominees, but interesting New Yorker article by Jane Mayer about a Republican dark money group running smear campaigns against Biden nominees. https://www.newyorker.com/news/a-reporter-at-large/the-slime-machine-targeting-dozens-of-biden-nominees
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Senator Whitehouse talks about dark money almost every chance he speaks in the SJC.
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My last take on Rawlinson for now.
An overlooked issue with her request is the fact the person she wants replacing her, Berna Rhodes Ford is the wife of the current Nevada AG, Aaron Ford.
That would lead to a lot of cases where she would have to recuse herself IF she was the nominee.
Throw in the optics of her weighing in on her being the replacement and it’s a headache we don’t need.
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Also throw in Aaron Ford‘a past ethical issues & I would out right reject Berna Rhodes Ford as the nominee. There are plenty of other possibilities from Nevada. Judge Rawlinson can stay on the bench until she’s 90 if she conditions her retirement in her being allowed to pick her successor. Just fill every current circuit court vacancy & a handful of the ones that will become vacant over the next few months before the end of the year & I’m fine with that.
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Rawlinson needs to be told the same thing Robert King was, take your demands and shove them.
The main reason I wanted to see Rawlinson step down more then some other Clinton judges is because of her anti-LGBT views, which were on display a few years ago when she joined a dissent that said people who wanted same sex marriage bans overturned had no business going to the courts for help.
Given the war that is about to be waged on our community, the less chance a bigot has a chance to hear a case, the better.
As you said, in the mean time focus on other vacancies and worry about that one later.
I’m hoping to see more nominees this week, and hearings to follow.
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I will be watching the SJC website closely this Wednesday to see if they post a nominations hearing for the following week. For all the talk of how behind Biden, Durbin & Schumer are, the ABA (Link below) still hasn’t evaluated the pending nominees prior to last weeks batch. They even graded William Pocan already & his nomination is all but dead. I truly hope Durbin isn’t waiting for their evaluation to schedule a nominations hearing. That would be another blow from the KBJ stand still.
(https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/webratingchart-117.pdf)
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Another example of why Republicans are wining & why I take age into consideration. While I personally am happy to see the mask mandate for away, it should not be deemed unconstitutional. The judge that made this ruling today is the youngest federal judge in the country appointed by Trump. She’ will be making rulings like this probably years after many of Biden’s older nominees that came after her.
(https://www.cnn.com/2022/04/18/politics/cdc-mask-mandate-ruling/index.html)
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Yup.
And that repeats a pattern started under Reagan and also Nixon.
Republicans played the long game on judges and have won.
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It’s more like Republican voters don’t skip election cycles. You can’t choose judges if you don’t win elections. It’s that simple.
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Judge Kathryn Kimball Mizelle
When people on here or anywhere bemoan an “emphasis” on judges age, scream this name at them. This person will be MAKING law LOOONG after Trump is gone.
I do not know what it is about the psyche of liberals that makes them so unstrategic about everything, and want to unilaterally disarm in every political or policy fight. How is it that you gleefully march around in June for Pride without understanding that the things you are celebrating didn’t come into effect by that elected official marching with you.
So you care about climate? How about you care about the few people who can gut the already meager laws we have protecting our environment?
Campaign finance and unlimited money in politics? Hello? Your Congress did something about it! But in the end, we are where we are because of judges, not your elected official.
Not satisfied with those? Then insert your issue here_________
For better or worse, this is where we are, and that’s where we need to engage.
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@Gavi
Amen. As one of the Floridians that cast a pregnant Chad the first time I voted in the 2000 presidential election, ever since then I wanted to know who are these people on the Supreme Court that got to decide my vote doesn’t count when I clearly voted for Al Gore. It truly angers me when I see Republicans take the judiciary so serious while Democrats don’t until recently. Hell even now we still can’t get any new nominees for vacancies for 84 days & when we do, the youngest one is still almost a decade older then the Trump judge that made the ruling on the mask mandate. It sucks losing
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2 under consideration for 6th Circuit
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Rachel Bloomekatz Is definitely the pick I have been advocating for the most as had other have on this site. The best case scenario is if judge Karen Moore retires so he can nominate both.
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Perhaps if she doesn’t get the 6th Circuit seat, give her the DC seat…..
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Alexandra Schimmer is featured on the Federalist Society website….So why would a Democratic WH consider such a nominee for a circuit court seat is somewhat bizarre
https://fedsoc.org/contributors/alexandra-schimmer
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I asked the same thing in an earlier post about Jennifer Nou but @Shawn explained they have liberals on their site. Michael Rapport also is on the federalist society website & he was my first choice for the 7th circuit.
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It is not bizarre at all. FedSoc often has panel discussions with at least one liberal contributor present. She’s not my first choice for this seat, but her name on the FedSoc website isn’t a mark against her. The mark against her is that she isn’t Bloomekatz
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@Rick
I wouldn’t want to see Rachel Bloomekatz for the DC circuit, not because she wouldn’t be a good pick but more so because I would rather use that seat either for a strong progressive from the DC area or one from a state with no circuit court vacancies. That’s part of the reason that makes J. Child such a horrible pick. There’s currently an opening on the 4th circuit in South Carolina.
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I hope we see nominees for the 1st Circuit as well as the open seat in Kansas soon.
I want to make sure we can keep our majority on the few Circuit courts we have control in instead of losing them.
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The Kansas vacancy on the 10th circuit is so puzzling…
I’m still upset about the Kansas senators withdrawing their support for Obama’s picks back in the first toilet flush of the Tea Party movement. You would think that Biden remembers this and would waste no time in sending up a 30-something year old nominee for that seat.
For all intents and purposes, we still have blue slips for circuit courts. Mathis is the only exception but you can’t even count him yet because he still isn’t a judge.
Dems: The blue slip is dead. Long live the blue slip!
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Are you referring to Stephen Six? He was a really controversial nominee.
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@Mitch
Sorry, just seeing this.
Yes, Six. The only thing controversial about him was that he refused to follow along with GOP AGs in suing to block ObamaCare and wasn’t anti-abortion.
This instance stuck with me because it was AFTER his SJC hearing, which means after the two sens had returned their blue slips. So this episode was worse than Ron Johnson’s duplicity on Pocan. It was amazing when Sen. Leahy decided to go along with this nonsense.
That cleared up, I really hope that the WH isn’t waiting this infernally long time in order to please the two senators (Marshall replaced Roberts). There needs to be a nominee for that seat now!
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@ Dequan
I was reading up today on Rachel Bloomekatz after that earlier tweet mentioned she was in consideration for the 6th Circuit seat……I was very impressed with her and I just want to see her on a circuit seat, whether it’s the 1st Cir to the 11th Cir and all circuits in between, lol…..We need a progressive home run after the bunt singles with the 2 recent blah 7th & 9th circuit nominees….
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Oh absolutely. If you look at my past post on this site you will see me advocating for Rachel Bloomekatz for a long time. She needs to be on a circuit court, no doubt about it. If you look in her past, she actually has worked with Deepak Gupta (And he has worked with Manuel Crespo). All three need to be on the circuit courts. My preference would be the 6th, DC & 2st respectively.
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(https://www.msn.com/en-us/money/other/biden-signs-jackson-s-supreme-court-commission-early-in-unusual-move/ar-AAWnybP?ocid=msedgntp&cvid=e7f0b64a23f44824b174d3d02ff4e634)
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I’ve been holding off from posting and commenting on this issue for a while in hopes of gathering more information. So far, from what I can tell, this is probably a bungled job by the White House and by the Justice’s OLC. I don’t know if you remember Dequan, but we were both shocked when the FJC posted that she was an Associate Justice, meaning we had 9 AJs currently serving, which is ridiculous. I think the Biden folks were on a hair trigger and got nervous so they cleared him to issue a “prospective commission.”
The confusion is made worse by them of releasing this publicly. This suggests that they will probably do damage control. I just don’t understand the reason to needlessly create this issue.
As with everything legal, the devil is in the detail. As I see it, this “prospective commission” is legally infirmed and a new one will have to be issued upon the actual vacancy. The only way this sort of commission can pass muster is if it is worded in such a way that dates the operation of the commission to a date two or so months into the future when Breyer leaves.
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While I’m not a lawyer or legal scholar, I too just don’t know why you don’t wait until the day Breyer steps down to sign the commission. I realize the rush to confirm her but don’t see what the rush is to sign the commission. Even if all 50 Democrat senators stopped being in the senate today, KBJ has already been confirmed & Biden would be able to sign her commission anytime during this congress to my understanding.
I’m sure it is legal to sign the commission before the vacancy as long as the vacancy happens during the same congress but I can’t find a precedent for it being done. When Trump put McConnell’s prorogue on the DC circuit, judge Walker stayed on the Kentucky district court for almost two more months until judge Griffith actually retired.
Now if this is legal, now that the precedent has been set, I hope Biden uses it more, particularly if the Democrats hold the senate. Confirm as many judges as possible, even if the vacancy isn’t going to occur until late in the congress then sign the commission ASAP.
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My understanding, upon reading the opinion of OLC, is that the DoJ folks were worried about the Senate’s Motion to Reconsider power. In Senate rules, there’s a provision that could be interpreted as giving a senator who voted with the prevailing side of a nomination the right to force the WH, via this motion, to return the nomination to the Senate for reconsideration. 1: None of the 50 Dems would do that. 2: Only the other three GOP aye votes could. 3: This assumes that the Senate is flipped to the GOP.
— RULE XXXI
“When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate; but if a notification of the confirmation or rejection of a nomination shall have been sent to the President before the expiration of the time within which a motion to reconsider may be made, the motion to reconsider shall be accompanied by a motion to request the President to return such notification to the Senate. Any motion to reconsider the vote on a nomination may be laid on the table without prejudice to the nomination, and shall be a final disposition of such motion.”
To your other points:
A confirmed nomination doesn’t expire at the end of a congress.
The Walker situation is different. He was confirmed but not issues a commission. He wanted to finish up in KY. Trump didn’t execute Walker’s commission until September, not like the KBJ commission that’s been issued two months in advance.
Remember: the issuance of a commission is the final act of disposition. This can only be done when an office is vacant. So yes, I, too, say, confirm! confirm! confirm! Then sign the silly piece of paper at the right time.
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Ah, that does add some clarity & makes sense. I have seen final senate votes where all Republicans vote against, all Democrats vote for & then I see Schumer change his vote to against along with the Republicans. When I investigated why, it’s because he can do what you wrote since his NO vote is now in the majority.
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For reference, here’s the standard language for a SCOTUS Associate Justice commission:
Know Ye That reposing special trust and confidence in the Wisdom, Uprightness, and Learning of [NAME], of [STATE/TERR.], I have nominated and, by and with the advice and consent of the Senate, do appoint [GENDER] an Associate Justice of the Supreme Court of the United States and do authorize and empower [GENDER] to execute and fulfil the duties of that Office according to the Constitution and laws of the said United States and to Have and to Hold the said Office, with all the powers, privileges, and emoluments to the same of right appertaining, unto [GENDER] the said [NAME] during [GENDER] good behavior.
Of course, the WH can change it up a little here and there. But you can only “appoint” (i.e. commission) someone to an office that’s vacant.
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So can KBJ continue to hear cases on the DC Circuit over the next couple of months while waiting for Breyer to retire? Or does receiving her commission early eliminate that possibility?
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In news about potential appointments to the seat of Diana Gribbon Motz on the 4th Circuit, it looks like Liz Oyer is out of the running, as she was recently appointed as the DOJ’s Pardon Attorney. She may still get a DC Circuit seat in the future. I know Dequan has hoped for Ajmel Qureshi, but he was just appointed as a Magistrate Judge for the District of Maryland on March 9 and I doubt he would be elevated this soon. I’ve said that my top choice would be Tejinder Singh (1982), who is progressive, a former Motz clerk, and would be the first Sikh federal judge (I can’t wait till the bigots go crazy over the turban). Jessie Webber would also be a fine choice. However, I’m worried Biden will end up elevating District Judge Paula Xinis. She is also a former Motz clerk, a former Federal Public Defender, and the last Obama appointed Judge to receive confirmation. Progressive, but given that she has a 1968 birth date, I’d prefer someone younger.
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@Ethan
The only two district court judges that would be acceptable are George Hazel or Deborah Boardman. Hazel Isn’t as progressive. To be honest neither warrant the time it would take to backfill their district court seat. I’m happy for Ajmel Qureshi getting a magistrate judicial seat but I’m not happy it happened while there is a circuit AND district court seat vacant. Liz Oyer was definitely my second choice so sad to see neither of them will be selected.
I don’t know much about Tejinder Singh but it would be worth seeing the GOP SJC members heads explode during the hearing. Speaking of nominations, I’ve been checking the SJC website all day. No nominations hearing scheduled for next Wednesday yet.
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Well, it looks like Tejinder Singh has left Goldstein & Russell. I wonder if it means he is being vetted or has been offered something (not that plenty of nominees stay with their job till confirmed, just interesting timing). Here’s his archived bio: https://web.archive.org/web/20220101092045/https://www.goldsteinrussell.com/attorneys/tejinder-singh/. He’s definitely a strong progressive. I do think George Hazel is a strong possibility as Andre Mathis is Biden’s only black male appellate nominee so far, but I definitely agree that having to backfill his seat makes his selection far from ideal.
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I don’t think he would leave his law firm without being confirmed, let alone nominated. I don’t know if any cases in recent memory of that happening.
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Amen, we have a hearing…..HOPEFULLY, it’s judges and not US attorneys or Assistant Director of Floral Arrangements or other follishness
https://www.judiciary.senate.gov/meetings/04/20/2022/nominations
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I don’t wanna see another US Attorney at a hearing until 2023… Lol
But thankfully we have the hearing scheduled. Hopefully there will be another the next week or at worst two weeks after for last week batch of 5. If they put 6 nominees in each hearing they would be caught up after two hearings but that’s a lot to ask for Democrats so as long as I see at least 5 I’ll be happy.
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Looks like the ABA just rated Abudu with WQ/Q and Childs with a WQ rating. Maybe their hearing will be soon.
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Well I guess somebody from The White House must have been reading our comments. KBJ commission being signed has been removed from the FJC site. Looks like President Biden will wait until a vacancy to sign her SCOTUS commission. I think that is the best decision to avoid any future litigation.
(https://www.fjc.gov/node/1394151)
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Yup.
They jumped the gun IMO, glad to see they fixed it.
Would be nice to see some more nominees before the end of the month as well.
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Looking at the calendar, here is a possible schedule for SJC nomination hearings for every Wednesday over the next month or so;
April 27 – Hopefully Childs, Abudu & 4 district court nominees.
May 4 – Probably no hearings.
May 11 – Hopefully, Lee, Mendoza & 4 district court nominees.
May 18 – Probably no hearings.
May 25 – Hopefully if we get a new batch over the next week, nominees from there.
June 1 – Recess week.
June 8 – Hopefully if we get a new batch over the next week, nominees from there.
June 15 – Probably no hearings.
June 22 – Hopefully if we get a new batch over the next week, nominees from there.
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Just to clarify:
The Federal Judicial Center (FJC) isn’t an Executive branch agency. It is the educational arm of the Federal Judiciary, which makes this error even more unbelievable. FJC removed that about KBJ late last week.
Also, the WH maintains that Biden has indeed commissioned KBJ to SCOTUS but won’t share it. As I said above, this bungling is embarrassing, but should be easy to fix at the appoint-ed/ing time in late June.
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I’m interested to see who will replace Jose Cabranes.
That will be a major shift on the 2nd Circuit and will make it a liberal/moderate court.
Same with Sandra Lynch on the 1st Circuit.
Would be the case with Johnnie Rawlinson on the 9th as well though I don’t see her retiring any time soon.
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Bessie Dewar is definitely the frontrunner for Lynch’s seat.
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New vacancy on Eastern District of Michigan
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This article talks about the antics of some judges in demanding a certain person replace them and boy does it make Kanne, King and Rawlinson look even worse.
Yes, the game of judges taking senior status under one president or another isn’t new but outright demanding one person replaces you or else just reeks of corruption.
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There is a vacancy on the Eastern Arkansas District Court and I don’t know how that is going. John Boozeman is considered reasonable by Democrats, but Tom Cotton has a very different reputation.
I’ll throw out a name, someone who may or may not be interested. Cindy Thyer is a state trial judge from northeastern Arkansas appointed by a Democratic Governor. Her husband is the U.S. Attorney for Eastern Arkansas. She fits the profile of a future Democratic District Court nominee.
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I doubt that seat will see a nominee so long as Cotton is in office, unless blue slips get removed.
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Some interesting observations from the nominees today. It looks like the Idaho senators are working with The White House so hopefully we get a nominee for the district court vacancy soon.
Also, Jacqueline Romero was one of my possible picks for one of the vacant seats on the Pennsylvania district court. Hopefully this nomination means we may get a package deal for all of the vacancies the state has.
(https://www.msn.com/en-us/news/politics/biden-announces-five-new-nominees-for-us-attorneys/ar-AAWuhl2?ocid=msedgntp&cvid=8e6f88ed72fe484880950355d62ab119)
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I’m hoping in the next batch we will see more Circuit court nominees but also ones in areas that need them like Idaho, PA and CA.
Need to fill those spots ASAP
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I don’t wanna receive another email or text from Elizabeth Warren about adding seats to the Supreme Court until I see nominees for the one circuit court & the district court seats currently vacant in Massachusetts. And don’t even mention the California & Oregon vacancies. It’s beyond embarrassing if the next batch doesn’t give us nominees for each of those blue states.
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I think we will see another batch of nominees in the next couple of weeks, which should tell us a good deal regarding what the next couple of months will look like for judicial nominees.
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Also, the nominations in KS and SC needed to be filled as well.
Screw the Republican senators at this point.
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We have exhausted the subject of who we want to see nominated to various circuit courts with vacancies. I wanted to go over some names I do NOT want to see nominated. Here are some names with the reason why not after each name;
D.C. Circuit – Tanya S. Chutkan (Born 1962). Cate Stetson (She was born c. 1969, would not add diversity or a historic first to the second highest court in the land & does not nearly have a progressive enough background.
First Circuit – Denise J. Casper (Born 1968. We don’t need any more circuit court judges born in the “60’s).
Fourth Circuit – Meliah Bowers Jefferson “SC” (I put her name with a major caveat. If The White House does a deep dive into her medical history & deems she is clear of any major medical issues, I would be fine with her. But her having a near death experience not too many years back, especially related to her heart does give me pause.)
Sixth Circuit – Anybody not named Rachel Bloomekatz for the Ohio seat.
Ninth Circuit – Rosemary Márquez “AZ” (Born 1968. We don’t need any more circuit court judges born in the “60’s).
Tenth Circuit – Stephen Six (Former failed Obama nominee that was good when blue slips were in play but not now.)
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