John Frank Murphy – Nominee to the U.S. District Court for the Eastern District of Pennsylvania

Intellectual property attorney John Frank Murphy is Sen. Patrick Toomey’s selection in a package of four nominees to the Eastern District of Pennsylvania.

Background

John Frank Murphy attended Cornell University, getting his B.S. in 1999, and then got a Masters in Science and a Ph.D. from the California Institute of Technology in 2002 and 2004. Murphy then got a J.D. from Harvard Law School in 2007.

After graduating, Murphy clerked for Judge Kimberly Moore on the U.S. Court of Appeals for the Federal Circuit. Murphy then joined the Philadelphia office of Baker Hostetler, where he currently serves as a partner.

History of the Seat

Murphy has been nominated for a seat on the U.S. District Court for the Eastern District of Pennsylvania. This seat opened on August 31, 2018, when Judge Lawrence Stengel moved to senior status.

Despite this seat opening with two years left in the Trump Administration, no nominee was put forward for this vacancy.

Legal Experience

Murphy has spent his entire legal career at Baker Hostetler, where he has primarily worked as an intellectual property litigator. At the firm, Murphy handled a significant amount of patent litigation. For example, Murphy was part of the legal team representing Muzak LLC in a suit covering patents for playback of music through telephones and public speaker systems. See Info-Hold, Inc. v. Muzac LLC., 783 F.3d 1365 (Fed. Cir. 2015). He also represented Nokia, Inc. in a patent infringement suit litigated in the Eastern District of Virginia. See Global Touch Solutions LLC v. Toshiba Corp., 109 F. Supp. 3d 882 (E.D. Va. 2015).

Notably, Murphy was part of the legal team for Comcast in a patent infringement suit filed against Sprint alleging that the latter had infringed four of its patents. See Comcast Cable Communications LLC v. Sprint Communications Co. LP., 203 F. Supp. 3d 499 (E.D. Pa. 2016).

Outside the intellectual property context, Murphy represented a number of plaintiffs suing to block the Pennsylvania Secretary of State’s certification of ExpressVote XL electronic voting machines, challenging the security, reliability, and accuracy of the machines. See Nat’l Election Def. Coalition v. Boockvar, 266 A.3d 76 (Pa. Commw. LEXIS 567 2021).

Political Activity

Murphy has donated to a number of candidates throughout his career, including Pennsylvania Sen. Pat Toomey, who has received approximately $4000. While most of Murphy’s donations have been to Republicans, he did donate $100 to the Attorney General campaign of Steve Dettelbach, a Democrat who currently serves as director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (Dettelbach was also a partner at Baker Hostetler).

Overall Assessment

With his background in intellectual property law and a willingness to back Republicans, Murphy is likely to attract support from members of both parties. As such, he will likely sail to confirmation.

133 Comments

  1. I didn’t realize that this seat has been open for as long as it has. Murphy seems like a very solid compromise nominee here. Interesting to see that he donated to Dettelbach considering how controversial his nomination to ATF was.

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  2. I think we are very fortunate for this to be senator Toomey’s pick. I was expecting much worse. You can argue this Republican pick is on par with some of the nominees we have gotten out of New Jersey or California. Murphy also worked pro bono representing plaintiffs in civil rights cases through the Prisoner Rights Panel of the Eastern District of Pennsylvania. I am very pleased with this being a Republican pick. It was worth the deal to get the other 3 picks we got.

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    • Yeah I strongly disagree with you here. I would have far preferred a deal where we got three judges like Arianna Freeman and one Chad Meredith, rather than this deal.

      In particular, Kelly Hodge is an absolute disaster for a Democratic selection. She is awful, a hardline criminal prosecutor. One can make an argument that Murphy, even as the GOP selection is less bad in many ways.

      But given the number of open blue state vacancies to be filled, I would not have filled any of these seats and take my chances with Fetterman.

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      • @Shawn

        Your last point was exactly what I said months ago as well. I would have just left all of the seats open & take my chances on Fetterman. But since that’s not the route they took, I’m fine with this deal. I do agree that Kelly Hodge should have been replaced by another Democrat pick. I don’t think she’s nearly as bad as you do, but do agree there could have been better picks that would have been acceptable to Toomey.

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  3. Senator Leahy is still out but today in the SJC senator Tillis was nice enough to buddy vote pass on a few nominees. Bloomekatz was a tie vote & will need to be discharged. The 3 Puerto Rico & Ana Reyes were all voted favorably to the floor.

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    • Not surprised that Bloomekatz was a tie vote, as I don’t expect young home run nominees to get Graham’s vote, but furthermore Bloomekatz has a partisan background as Brown’s campaign lawyer. Brad Garcia will also be a tie vote. So would have Roopali Desai if the GOP wasn’t doing Sinema a favor.

      I expect Brown to push very hard for Bloomekatz to be confirmed. I’ve heard that Brown sees her as family. It’s possible she gets Collins or Murkowski’s vote.

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      • I agree with you Shawn. I think Bloomekatz, Abudu, and (assuming he is deadlocked) Garcia will all get across the finish line because they have some home state support and are in important seats.

        For Rikelman and anyone else that is super controversial I’m less certain on because the time crunch is going to be significant going forward.

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  4. I think Dale Ho is more controversial than Julie Rikelman because of his outspokenness on Twitter, appearing regularly on left wing TV & radio, and his work for voting rights…..

    Rikelman should have a hearing in Sept, clear committee in Oct and safe to say she’ll need discharge vote to…..There is no reason in the world that she can’t be confirmed in 2022

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    • “There is no reason in the world that she can’t be confirmed in 2022”

      There actually is one, Joe Manchin. I strongly stand by my view that Manchin will vote no, as he has on similar types of pro-choice nominees in the past. She would need to get Collins or Murkowski’s vote.

      As I said previously, Rikelman was nominated for political reasons. I expect a hearing for her in late September or early October, and I strongly suspect that the questioning from Cruz and Hawley among others will become fodder to energize pro-choice voters. I understand why she was selected even she cannot be confirmed.
      Personally I think it is a waste of a selection when there are several others who are younger and more progressive who could have been nominated here and more easily confirmed.

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      • When I read the White House announcement it didn’t specify what state she was nominated for. I was hoping it was New Hampshire because we have a wealth of young, progressives we could have gotten to fill the Massachusetts seat.

        I am still nauseous at the Connecticut pick for the 2nd circuit. To pick a near 60 year old over far better & younger picks like Justin Driver, Cristina Rodriguez, Jamal Greene & so many others truly makes that a bad pick. I really wish Schumer had fought to keep it a New York seat after seeing her picked.

        I will be interested to see if there will be any movement whatsoever on judges over the next 4 weeks. I am still holding out hope Durbin will hold at least one hearing but he didn’t mention anything this morning about it.

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      • I just have to disagree @Shawn. No matter how he voted from 2010-21, Manchin has voted for every Biden nominee to date. Every. One. My guess is the WH makes sure they have Manchin’s vote before they nominate anyone.

        Having said that, we still don’t have any hard data as to why Mathis’s nomination is being held up. Nothing in the Commercial-Appeal. Nothing in other blogs. Nothing in mainstream law publications. I get that Blackburn and Haggerty wanted someone else, but if the WH was going to honor the blue slip, even though they don’t have to, they shouldn’t have nominated him in the first place. Not fair to him or Bernice Donald. Give all the Dems booster shots and paxlovid, make sure VP Harris is in town, and get it done.

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      • @Dequan

        One reason that Mathis’s nomination is being held up is procedure. The Biden administration did more than just nominate him without the blue slips of either Senator. It didn’t even send them a blue slip to respond to. That has never been done before, not even by the Trump Administration. The whole Republican caucus is up in arms about it, fearing it’ll happen again if any of them support Mathis

        Even Dick Durbin denounced the failure to send blue slips and called on the White House to never do that again. As for Mathis himself, Durbin claims that he’s not to blame and shouldn’t be penalized and thus still supports confirming him. But Democrats have had what they call “attendance issues,” which are well known on this blog.

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      • @Mitch

        Yea I remember that. I think the administration did everything right such as give Blackburn & Haggerty months to vet & meet with Mathis & even give McMullin a look. The not sending them blue slips was the real screw up. A total unforced error. But now it’s time to get everyone healthy & move on. I will be one of the happiest people on this site if o Saturday Schumer announces the senate will be in session this Monday again.

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  5. I am most concerned regarding the case where John Frank Murphy represented “voter-rights organizations and individual voters in challenge to certification of voting machine.” This was a curious and dubious case suing the state of PA for using certain electronic voting machines. If this had been post-2020 I would consider this in the right-wing conspiracy theory realm.
    However this case was filed in 2019 and the group he was representing included John Bonifaz’s group, which is extremely progressive. (it is still a bogus lawsuit IMO, I strongly objected to the conspiracy theories on the left regarding voting machines around 2004.)

    Murphy deserves several questions at his hearing regarding his choice to take this case.

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    • That was the first thing I looked up when I reviewed Murphy after he was picked. I was confused as to if he was Toomey’s pick or not. I guess that’s why I like him as a GOP pick so much. He doesn’t seem to be a right wing hack at all. More so the traditional pick you would expect from a Republican in a purple state.

      But I still stand by my initial statement months ago & let all of the seats stay vacant & take my chances on Fetterman winning. I’m not too scared of Dr. Oz being worse then Toomey in judicial nominees so we probably would have gotten a similar slate of judges next year even with Oz.

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  6. Schumer just said the senate will be in session THIS Saturday. He just moved to discharge a non judicial nominee. Also Roopali Desai was confirmed 67-29. Amazing speed, less then 50 days from nomination to confirmation.

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    • I’m stunned that so many Republicans voted for a 43 year old nominee who has a reputation for being a partisan hack. Yes I know it is a favor to Sinema, but she got more votes than J. Michelle Childs (who was an absolute wet kiss to the GOP). TBH, if the Democrats greenlit a GOP nominee like this under Trump, I would have been really pissed.

      Could Desai move to the SCOTUS shortlist based on this vote?

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      • @Shawn

        I absolutely believed she should be on the SCOTUS shirt list once confirmed regardless of the vote. She would be a history making pick but of course what I care about most, she would be a young progressive. Her being the third justice from the state of Arizona I’m the past few decades would definitely be a plus in my book. I’m sure todays vote moved her higher on Biden’s list.

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      • I am too. They definitely successfully bribed Sinema with something. She was also caught fist bumping Hawley or Cotton and Turtle yesterday.

        The 67-29 vote is weird. Maybe Desai will not be even close to as progressive as her record might indicate and she told GOP senators that. Otherwise I don’t know how she got so many GOP votes

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      • While I know it’s never a guarantee how a judge will turn out, I would be beyond surprised if Roopali Desai turned into a secret conservative or even moderate. Out of Biden’s 34 circuit court nominees so far, she is easily top 5 most progressive. She’s probably top 3 & unlike some others, she’s been pretty open about it. I think it’s more likely Sinema assured the GOP she will not vote for eliminating the rich people exemption in exchange for a fast track on the nomination. Her willingness to tank the Biden agenda is one reason I am perfectly fine with her getting a primary defeat but in the mean time keep giving us young progressives on the bench with her recommendations & votes.

        I truly hope now that Schumer has scheduled a vote for this Saturday that they will cancel at least a week of the recess. I doubt it since he hasn’t announced it yet, but them staying in session this Saturday is a least hope. I wish they were discharging Nancy Abudu, Rachel Bloomekatz, Dale Ho or Kenly Kiya Kato instead of the Secretary of Trash Pile Up or whoever the Hell he is discharging but at least they are doing something so I guess I should be happy about that.

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      • @Dequan Agreed with that (I would say only Bloomekatz is even close to having the progressive record as Desai), which makes the vote margin very confusing…we’ll see soon just exactly what Sinema has negotiated for when she has to make her stance public

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      • @Delco

        You can probably make an argument that in addition to Bloomekatz, perhaps Myrna Pérez, Arianna J. Freeman or Nancy Abudu had just as much of a progressive background. But I can’t really entertain anybody else in the discussion. I was actually pleasantly surprised when I saw Sinema recommended her because of my trust issues for obvious reasons with her.

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  7. “As I said previously, Rikelman was nominated for political reasons”

    Yeah, but I’m hoping that she was nominated to be confirmed, not nominated strictly for politics or as some charade…

    Now let’s flashback to 2016 after Justice Scalia died……This could have been a textbook case for nominating someone strictly for politics….There was NO WAY McConnell was going to let ANYONE be confirmed, no matter how much of a centrist he or she was….

    Obama should have nominated the furthest left African American or Asian female, then Hillary Clinton could have spent entire campaign saying “Look how senate Republicans are denying the first female African American/Asian SCOTUS candiate a hearing and vote”…..

    Merrick Garland was never going to be confirmed in any universe where the GOP had the senate….Obama should have made the aforementioned female nominee that would have been very good politics for HRC.

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  8. @Dequan

    “I think it’s more likely Sinema assured the GOP she will not vote for eliminating the rich people exemption in exchange for a fast track on the nomination.”

    Say this is true. That may explain the fast tracking of the nomination, but it doesn’t explain the *19* GOP senators who vote yes on the nomination. There’s no reason why GOP senators to vote yes on someone like Desai even if they agree to fast track the nomination.

    The only other thing that comes to mind is that Sinema rolled over for Trump on nominations from Arizona and also voted for many other controversial Trump nominees in 2019-2020. Perhaps this is a thank you gift to Sinema for that support.

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    • I think a better comparison would be 19 Dems voting for James Ho or Andy Oldham if they were nominated to the 9th from Arizona & recommended by John McCain.

      Looking back at past Republican hearings, the SJC held hearings for judicial nominees three straight Wednesday’s on October 10, 17 & 24 in 2018. Durbin needs to respond in kind.

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  9. Seriously, this does not look good:

    @Dequan
    The October 2018 precedent has an asterisk: the Kavanaugh confirmation. I cannot find the article now, but at the time, Republicans claimed that they needed those days to “make up” lost time from the second set of Kavanaugh hearings with Dr. Ford.
    Dems should use the same excuse: say that COVID absences necessitate extra hearing days. Or, say that Ron Jon’s actions waste SJC time that the committee need to recover. But who am I kidding? These are Dems we’re talking about.

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    • I am getting a very bad feeling about this. It doesn’t add up.

      Of course she would do this just as polls are going up for us, Manchin has finally come to his senses, and reconciliation looked great – giving us an extra boost for the midterms. That jolt will take a hit if she severely waters down the reconciliation bill.

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      • I’m not as well versed in this bill as I am judicial nominees but if it’s a win for Biden I will take it. I’m happy Sinema waited until after the confirmation vote today to agree to whatever she has. 30 less hours being wasted of senate time is worth her stalking a few days. Now of them staying in session next week to get this bill required now versus September occurs, I’ll really be all for the bill.

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      • She didn’t water the bill down much, although I’m pissed she removed the carried interest tax.

        The bigger problem is that this IRA bill is barely better than nothing given the side agreement with Manchin to vote on a bill to speed up environmental review for drilling and pipelines. Although Lindsay Graham is hinting that the GOP might filibuster such a bill out of spite, but I doubt they actually will. I sure hope they do so though.

        I can’t stand Sinema, she reminds me of Joe Lieberman in her behavior, pure backstabbing scum. If Sinema is the nominee in 2024, I will support and donate to the GOP nominee, even if it is Blake Masters, Paul Gosar, or Andy Biggs. I will also do the same for the opponent of Robert Menendez, who is the worst Democratic senator, a criminal, and likely engaged in sex trafficking in the Dominican Republic.

        Also Sinema cannot run as a write-in candidate after losing the nomination, it appears that the sore loser law in Arizona prohibits her from doing so.

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  10. Sen Sinema must have Neo like “Matrix” powers….She also had Romney switch his vote…And I think Cassidy switched his vote to

    “At one point, Sinema bolted out of the Capitol doors, yelling, “Has anyone seen Mitt?” She located Sen. Mitt Romney, and escorted him back to the Senate floor, where the Utah Republican voted yes on Desai’s nomination. Desai was confirmed 67-29, with 19 Republicans voting yes.”

    https://www.nbcnews.com/politics/congress/sinema-cut-big-deals-republicans-can-one-party-rcna41602

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  11. It’s strange but I don’t think there’s anything too nefarious going on here with Sinema. It’s probably as simple as she’s really friendly with a bunch of GOP senators and was going around asking for a favor for a friend and pointing out that she’s been a moderate/institutionalist a whole bunch in the past. From the GOP point of view it was obvious Desai was getting confirmed anyway, so not much to lose.

    Anyway, glad to get at least circuit judge confirmed, but it’s going to be a busy fall. I hope Schumer has a good plan.

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    • The problem is not that the Democrats don’t have their Federalist Society. In truth, they do through multiple progressive groups, ACS, Demand Justice, Alliance for Justice, etc. Just on this site, Ethan and many others have come up with a massive list of potential progressive candidates.

      No the problem is that the shitty Democratic establishment doesn’t respect their base the way that the GOP does. That’s the fundamental problem. Look at how many horrible extreme candidates the GOP base has put up for the Senate, and how many seats they have lost in the past 15 years due to those candidates. And there are several more awful candidates that are going to cost the GOP race after race in 2022 for the Senate, statewide races, and even the House.
      Yet does the GOP ever attack its base? Hell no. And quite frankly that’s why they are successful, and frankly its pretty admirable.

      Progressives need to withhold support for the worst of these horrible left-bashing establishment Democrats. Primary them, and if the primary fails, vote third party or GOP. (Personally I would support the GOP candidates no matter how bad they are, but I understand that is a bridge too far for some.)

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    • Youngish, black, immigrant, woman, business owner? Impressive.
      Expect her to be on the Republican shortlist to replace Thomas, if he voluntarily retires during a future DeSantis or Hawley admin.
      If that future is too far out, she might age out of consideration. Let’s hope so.

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      • @Gavi

        Under a President DeSantis (Excuse me, I think I just vomited a little in my mouth), I think she very well could be considered for a SCOTUS vacancy, regardless of who retired. 11th circuit court judge Barbra Lagoda would probably be too old to be considered by then so she would be highly considered for the first Floridian (KBJ was actually born in DC even though she was raised in Miami) on the SCOTUS. Robert Luck could also get some consideration since he’s on the 11th & in his low 40’s now.

        I don’t know if there would be any 11th circuit vacancies to elevate her to but I could see him trying to put her on the DC circuit should a vacancy occur on that court to better position her for the SCOTUS. After the resistance that led to her first Florida SCOTUS nomination being withdrawn, I look for her to be revengeful on & off the bench similar to Thomas.

        On another note, I just saw a poll today that shows Tim Ryan with a near double digit lead over JD Vance. My God I wish they would stop publishing good polls for Dems. I only want to see polls showing them behind. We can’t afford any complacency.

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  12. ” My God I wish they would stop publishing good polls for Dems. I only want to see polls showing them behind. We can’t afford any complacency.”

    Yeah well, get used to it. Personally I don’t believe in these polls, but there is little doubt that the political environment is starting to turn around for the Democrats. Gas prices dropping, abortion firing up young voters to turn out, the likelihood that inflation will go down but we won’t be in a recession quite yet by November, and the feeling that Congress is getting things done (although personally I’m unimpressed with that they are doing). I think there is a serious possibility for a perfect storm here.
    What also helps is that Joe Biden is such an ignorable quantity that he is basically a non player. Nobody really cares that much about him (unlike say Obama or Trump), which is why his low approval ratings are not mattering much.

    The key to the midterms is youth and progressive turnout. If that is high, the Democrats will have a great night, if it isn’t they won’t. It’s that simple.

    I actually want to see these kinds of polls, because personally I think Democrats and progressives are naturally too pessimistic. I still think Tim Ryan is the underdog though despite facing a truly awful opponent in Vance. This pessimism results in making shitty deals such as appointing Chad Meredith.

    What I don’t want to see is the Democrats holding the House. That’s an undeserved reward for a horrible Democratic establishment who need to be given their pink slips. But for the first time this cycle I can’t say it is certain that the GOP will hold the House. We’ll have a better sense after the four House special elections this month.

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    • I don’t trust Republicans to be anywhere near power in the House. No meaningful legislation will get passed for the next two years, budgets will be hard pressed to pass & Kevin McCarthy will be one 80 year old heart beat away from being next in line to the presidency (Because I don’t believe no VP would be confirmed if Harris had to move up to the presidency).

      While I completely disagree with Republicans should take over the House, I do agree with you about the youth turnout will be key to November. For the first time in their lives they will end a year without rights they thought were guaranteed at the beginning of it. Hopefully we get a Kansas like turn Out. I’m still holding out hope for some kind of student debt relief as well. While I’m not in debit of completely eliminating all debt, I think some should be relieved. That would help youth turnout as well.

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  13. The 2022 version of the GOP is far too dangerous to hold power….If they took back the House they would have Impeachment A Palooza….Seriously, they’d set up a web site, “Which Democrat should we impeach this week?”…..They’d have endless hearings on Hunter Biden’s laptop, revisit Benghazi, go after Dr Fauci, and just set out to punish anyone who is a Democrat or perceived to be a Democrat.

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    • Bring it on! The GOP did this kind of stuff with Clinton and Obama too in 1995/2011, and it backfired on them. The same thing will happen in 2023 too. The lower info voter needs to be hit over the head in order to vote. We saw it with Dobbs and we will see it again with the GOP extremism of the House.

      As far as bogus impeachments, a Democratic Senate can simply delay or dismiss those impeachments.

      I just see little value to holding a narrow majority in the House in 2023 (versus a narrow minority), and a great deal of downside. Winning in 2024 will be considerably harder if the Democrats retain the trifecta. It’s not like this Congress is actually going to get rid of the filibuster even with 52 Senate seats in 2023 or do useful things like reforming the Supreme Court (through packing it or term limits) as long as Biden is President.

      In addition, the Senate can focus entirely on confirming judges and other nominees. Without the House, no legislation will pass anyway, so just focus on nominations.

      The one exception to all of this is if Biden resigns. Then there is some value to holding the House in order to nominate a new VP. But I suspect Biden will take a midterm where the Democrats unexpectedly hold the House to be a vindication of his horrendous leadership rather than a rejection of the GOP’s extremism.

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      • @Shawn

        My concern with a Republican majority in the House is there are other ways Biden could no longer be president other then him resigning. I wish him all the health in the world but we have to be honest, he’s 80. As you & I both said, no VP will be confirmed if Republicans are in the majority (Maybe other then Liz Cheney who could be a compromise nominee).

        My personal opinion is I just rather not be on a two year 80 year old heart beat watch just to get rid of older House leadership. They will eventually leave office but there’s no certainty they would leave even if they lost this November & regained the majority at a later year while they are still in their seats.

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  14. I went back to look at the last time the SJC held judicial nomination hearings in multiple weeks. During the Obama years they held hearings in FOUR straight weeks in 2013 on October 30, November 6, 13 & 20th. The good old days.

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  15. I remember when Amy Coney Barrett’s nomination was headed to the senate floor in the heights of COVID and Ron Jon said Republicans would absolutely show up for the vote, no matter their COVID status, even if they have to wear full HAZMAT suits on the floor. Well, two can play that game:

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    • @Gavi

      This is music to my ears. This is a long overdue strategy & one that I believe Republicans deployed a long time ago. Now if the Democrats would cancel a week of the August recess & Durbin holds at least one SJC hearing this month, I might actually be voting FOR Democrats instead of just AGAINST Republicans this November.

      Liked by 1 person

  16. I was thinking, there’s two vacancies on the court of International Trade. By statute, one of the two vacancies must be filled with a Republican. So if I were the administration, I would see if either Chad Meredith or the nephew of the South Florida Republican mega donor that Marco Rubio has been trying to get to be nominated for a federal judgeship for the past 5 years or so we’re interested.

    While I know this court handles different types of cases then the Eastern district of Kentucky or the Southern district of Florida, either man that is picked would have a life time appointment to a federal judgeship. That would make it much easier to be elevated to another judgeship in a future Republican administration.

    Democrats shouldn’t have an issue voting for either for this court since the seat has to be filled by a Republican anyway. And perhaps we can get some movement on negotiating nominees from the open district court seats in Kentucky or Florida as a result. I feel you can use this seat that must be filled by a Republican for a greater food to get other seats filled instead of just nominating a random Republican that you gain nothing else from the nomination… Just a thought

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  17. @ Shawn

    Another problem with GOP in charge of House would be they’d likely refuse to raise debt ceiling, pass any budgets, probably would be numerous federal govt shutdowns..

    Then again, the worse their behavior is, the more likely voters will punish them in the next election

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    • I don’t think we can rely on voter outrage to punish a party with electoral defeat. We’ve entered into a period of post-punitive politics, where it’s all and only about voting for your team. What could be more punishment-worthy than instigating an insurrection, then denying it, then actively condoning it? And yet, that party is still projected to win in November.
      The Watergate era accountability is over.

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    • I priced that in already, I fully expect that kind of behavior and it will cause a backlash.

      If the Democrats don’t want to deal with that, they can deal with that in the lame duck session with another reconciliation bill to provide an emergency funding bill for the government and extend the debt ceiling. Personally in the case of Dem Senate/GOP House, I would pass another bill in December to extend the debt ceiling for 2 years. But I would be perfectly fine with using the issue to make the GOP look bad.

      The only thing that a Dem House is useful for to confirm a VP. And unless Biden will resign as he should, this isn’t enough to overcome the upside of a GOP House majority.

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  18. Remember recently Durbin & Grassley were supposedly talking about adding nomination hearings, so is anything going to come out of this?……Republicans had 2 nomination hearings in 2018, but of course, Democrats won’t have 2 hearings this month…..Can we at LEAST get back to back hearings in Sept?…

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    • Remember: Republicans had August hearings BECAUSE McConnell canceled some of the recess, so technically those hearings weren’t “recess” hearings, since the senate was in session.
      Short of an agreement or a cancellation of some of the this recess a la McConnell, I don’t think Dems will have extra hearings. It’s simply just not how Dems are.

      Liked by 1 person

  19. I love how the senate is still voting at 6am. Twice a year when it’s time to leave for a long vacation we get all these votes in a 24 hour period but can’t work more then 3 days a week the rest of the year…smh

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      • @Joe

        I’m literally in the gym with the phone to my ear & stopped mid set when I heard Andre Mathis name come out of his mouth. 3,126 days & counting since the last black man has been confirmed to any circuit court may finally be coming to an end in September.

        @Shawn

        I agree. I really wish he had folded cloture on all the circuit court nominees then came back on Monday or Tuesday to vote on all of their cloture motions so when they return in September it would be for voted on confirmation. But to be honest just to hear the words Andre Mathis come out of his mouth is music to my ears at this point.

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      • I assume they will files more the week they come back. Typically Schumer doesn’t want to reveal his hand too early if he can avoid it.

        If we can confirm 2 a week leading into the midterms we should be in good shape I think. There’ll still be a backlog to work through in December but it should be pretty manageable.

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  20. Schumer is currently filing cloture on Lee and Mathis.

    Liked by 1 person

    • I also wish he would have filed cloture on Florence Pan. Not because of her, she’s one of my bottom 3 circuit court nominees. More so because at least we can get Todd E. Edelman intent to nomination sent to the senate after Pan is confirmed similar to Lindsay C. Jenkins after Lee is confirmed.

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  21. So Tues Sept 6th when they return, cloture will be invoked on Lee….What to watch for that day is who or if Schumer files cloture on other nominees….

    And since there will be no Aug hearings for judicial nominees, are they going to have more in Sept?………Democrats are not going to have 2 hearings in Aug like the GOP did back in the midterm year 2018

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    • At the very least Durbin needs to have back to back weeks of hearings. And I expect at least 6 nominees in each hearing. The first should include Montgomery-Reeves, Chung & the 4 Pennsylvania district court nominees. The second should include Araujo Khan & either Rikelman with 4 district courts or 5 district court nominees.

      Perhaps they don’t want to rush Rikelman per @Shawn’s suggestion so they may save her for closer to the midterms. I can also see an all California hearing since we have 5 pending nominees from the state with the possibility of additional batches between now & September.

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  22. I frankly could care less about confirming people like Lee or Pan. What I’m going to be looking for is that Bloomekatz, Abudu, and Freeman and a bunch of progressive district judges are confirmed before the midterms. If these these judges are not discharged and given a vote before the midterms, I’m going to vote GOP. That’s about it. If they lose on the floor, so be it.

    And oh yeah, DADT regarding Covid for the rest of the year for Senate votes. If you’re positive, just show up for the vote with a N95 and go back to your office when not voting.

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    • I definitely agree with the no more missing a week due to Covid if your not showing any symptoms. The stakes are too high & the time is too short. The GOP clearly have been doing that (Or they have some magical vaccine the rest of us don’t know about).

      And yea, nominees like Lee & Pan aren’t on any list of people I would have nominated but at this point they are the nominees. I just want them ALL confirmed before the end of the year regardless of the results of the midterms.

      I hope know that the Inflation Act is passed, they can rest up over the next 4 weeks & get to work on confirming judges over the next two months. If they can average one circuit court confirmation a week once they get back & sprinkle in a second one or two weeks, all currently pending can be confirmed by the end of the year.

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      • No they need to start confirming judges one after another. No more one circuit court nominee a week. I think you have to get 8-10 circuit court nominees floor votes before the midterms.

        After the midterms, it depends on the results. If the Democrats hold the Senate (without a runoff in GA), then an argument can be made for prioritizing a third reconciliation bill over judges. That bill would could try to mitigate some of the possible sabotage attempts that the GOP may try in 2023-2024 by putting aside emergency money for gov’t shutdowns and passing a debt ceiling increase. Personally I would prefer to just let the GOP do these things and pay the price for it, but I know others feel different. In addition, perhaps Biden can resign and let Harris become President.

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      • @Dequan

        “Now if they took my advice & sent a cloture motion for 2 or 3 circuit court nominees on Wednesday, voted for them on Thursday & confirmed them the following Monday, then you could do more then 1 circuit court judge a week even in a 3 day work week. ”

        Remember, per senate rule, post-cloture vote happens TWO days after the motion was filed. And the senate must be in session for a few hours on those two days. So, filing cloture on Wed means that the motion will ripen on Friday, if the senate remains in session.
        I know what you’re thinking:
        “But Schumer filed cloture on Thursday and the senate voted on the motion on Monday before. That’s only one day.”
        Sure, but that’s with a unanimous consent to dispense with the following rule:

        “… [T]he Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and ONE hour after the Senate meets on the following calendar day BUT ONE (meaning another day)…”

        Don’t you just love the opacity of senate rules?

        Like

      • Aaahh, it’s TWO days after a cloture motion is sent. Ok, I thought it was one day. They could still stick with my idea if they worked on Friday’s but since that’s out of the question then Tuesday’s it is… Lol

        Like

    • And no I don’t consider the IRA a win for progressives. As Bernie Sanders suggested in his opening speech, it is better than nothing, barely. If I were a senator, I would have given at least some thought to sinking the bill.
      The climate stuff is worth something, and that can be pitched to young voters and progressives. But it better be tied with a message that this is just the beginning and a future agenda that is still are still coming.
      The thing that would energize young voters most after abortion is a Biden resignation. Biden is at less than 20% among voters under 35+.

      Like

      • I’m not as well versed in the IRA bill as I am in the judiciary. From what I know, corporations will now have a minimum 15% tax. That’s a HUGE plus to me. I understand there is some climate provisions in it & a 3k Medicare cap from what I understand.

        It sounds pretty good to me from what I know of it. Obviously Sinema’s took some good out of it but unless Democrats can increase their senate majority by two more, you need her to count to 50. It sucks knowing she is pretty much in the pockets of big corporations but until her primary in 2024 she’s part of the reality for the math needed.

        As forBiden, I’m not worried about him. He’s getting wins. He wasn’t my first choice but he’s the president now & I think he’s doing a decent job with the senate & House math. If he decides not to run in 2024 I will be happy to see him enjoy his retirement but until then I believe he deserves to serve his 4 years he earned. Like @Shawn said the other day, Biden is not a focal point type president like Obama & Trump we’re. I think that’s a good thing. He didn’t leave The White House for two weeks & the country moved right along without him. I like that.

        He’s old, makes gaffes & isn’t as progressive as I would like. But he stopped Donald Trump from getting a second term, passed a stimulus, has probably been the best president at appointing judges in my lifetime (Despite me hating a few of his picks), got us out of Afghanistan, about to sign the IRA has added over 5 million jobs, has unemployment at around 3.5% & gas prices has reduced for over 50 straight days. I don’t think he is a bad president. Polls go up & polls go down. Elections are what matter. We will see in November what the American people have to say.

        Liked by 1 person

      • Well you will never hear me argue against them needing to confirm more judges. When I say they need to average one circuit court judge a week, I’m saying that in addition to district court judges & against the backdrop of a 3 day work week.

        Now if they took my advice & sent a cloture motion for 2 or 3 circuit court nominees on Wednesday, voted for them on Thursday & confirmed them the following Monday, then you could do more then 1 circuit court judge a week even in a 3 day work week. But I highly doubt they will strategize that good.

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  23. This would have been a good week for the WH with just the abortion result from Kansas on Tues……Throw in PACT, CHIPS, IRA….Then killing of Al Qaeda leader….The IRA act is far from perfect but its best climate legislation country has ever seen…

    As far as nominees, I think Sen Brown will fight to get Bloomekatz discharged & confirmed sooner than later…..I doubt he lets her collect dust like Mathis did for nearly year before cloture was filed today….He gave her very glowing opening remarks at her hearing back in June

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  24. So I think what you need to do is to stagger the circuit court nominations between the ones that are going to be 51-50 and those that will get a handful of GOP votes. That way you can excuse certain senators (i.e. Mark Kelly and Catherine Cortez-Masto) who need to campaign for re-election and long flights back.

    I would do the circuit court nominations in this order before the midterms:

    Week 1: Andre Mathis, discharges for Abudu and Bloomekatz, John Lee cloture

    Week 2: Lee confirm, Freeman, discharge for Garcia and other district court judges, Florence Pan cloture

    Week 3: Pan confirm, Abudu, discharge district court, Mendoza cloture

    Week 4: Mendoza confirm, Bloomekatz, discharge district court, Merriam cloture

    Week 5: Merriam confirm, Garcia, discharge district court, Pryor cloture

    Week 6: Pryor confirm, Montecalvo or TMR, discharge district court, Douglas cloture

    Week 7: Douglas confirm, district court nominees

    And sprinkle in district court nominees when possible

    Liked by 1 person

    • That makes sense Shawn. Make sure the VP & close re-election senators schedules are in sync. I’m not so worried about the district court nominees. You can confirm 4 of them in a day. So yea the focus should be the circuit court nominees & a similar schedule as yours could get the job done.

      Liked by 1 person

  25. Shawn, I agree. Schedules permitting I think they’ll try to stagger the votes out to make sure the more conventional nominees will be the ones voted on on Mondays and Thursday’s with the more controversial ones being held mid week.

    Regarding the district vacancies I am not so worried, those can all be cleared in a week or two after the midterms if necessary and we’ve seen Schumer and Reid confirm 10+ in a day before.

    Like

    • Since, as Hurd noted, a successor hasn’t been confirmed, he is in the right to do this. And, unlike when judges pull their senior status due to ideological differences or not getting their old clerk as their replacement, I think the reasoning is completely sound.

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      • This is ridiculous. Hurd is 85 years old. But no matter the age, there needs to be some law to prevent this. A retiring judge should not have any say so over who there successor is. At the very least once a nominee has been named they shouldn’t be able to do this. There’s far too much time & effort put into the process of replacing a judge for them to be able to rescind this far along in the process.

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      • Hurd isn’t asking for a specific successor, he simply wants to have the new judge be based in Utica. Gillibrand should have picked someone who is from where the seat is being vacated, not someone from a duty station in Albany that already has 2 active judges allocated there.

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      • But that’s my point. The retiring judge shouldn’t have any say so regardless of who or where their successor is from. I’m the constitution, 101 people decide who a new federal judge is. The 1 president & 100 senators. If Hurd wants to be in the decision making, he should run for the senate. I would be in favor of filing articles of impeachment for judges that rescind their retirement. The threat of them not getting their yearly retirement salary might stop this crap.

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      • What I’m saying is the two senators from the state of New York should be the ones to decide what area needs a judge. And based on their recommendations, the president can agree with them or not. Based on his nomination, the other 98 senators can agree with him or not. But the retiring judge should not have a role in that process. If the people of New York feel strongly enough about it as judge Hurd dies, they can vote the senators who made the recommendation out of office every 6 years. But I do not agree with retiring judges being able to withdraw their announcement unless there is a new president.

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      • I would be opposed to judges withdrawing their senior status just due to a new president taking office. I feel like to say that Hurd doesn’t know what is best for the N.D.N.Y to work properly is not giving him enough justice based on his years of experience on the bench (even as I have disagreed with several of his recent rulings).

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      • @Frank

        You are absolutely wrong.
        Two points
        1: I’ve already shared on this site the only available OLC opinion on the subject, which is binding if it hasn’t been overruled. That opinion states that if a president accepts a notice of resignation/retirement that there’s no going back from that. Further, “accept” is defined as an intervening action on the part of the president, like making a nomination vice that new vacancy per the notice. Hurd gave notice. Biden make a nominee. That’s the end.
        2: As to your second point about the duty station, please reread the article. It states that Hurd was appointed vice the vacancy of a judge who’s station was in ALBANY. Hurd it it upon himself to stay in Utica.
        If congress or the district court wanted to assign divisions within this district court, they would have done so.
        It is not up to a judge to impose that on the court, the president, or congress.
        This is absolutely impeachable. But Biden is a joke so he probably won’t do anything about it.
        I’m livid. Please excuse the typos, I’m on my phone.

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      • @Gavi

        I couldn’t have said it better myself. Excellent details. I would actually take it a step further. If Biden had nominated Chad Meredith to this seat I would still be in favor of impeachment to get Hurd off the bench. I would of course then hope the senate rejected Chad but that would be irrelevant to the point that a judge should not be allowed to do this. You can’t allow this precedent.

        When the House returns Friday to vote on the IRA, articles of impeachment should be filed on Hurd. Give him until September when they return to change his mid or else go
        Forward with it. Even if he’s not convicted in the senate, at least there will be a stain on him & more important give some pause to the next judge that decides to do this bs.

        Liked by 1 person

      • @Dequan

        The worst thing Biden could do now is to withdraw Rodriguez’s nomination. It would be tantamount to Hurd picking his successor. As David Lat reminded us, though they may serve for life, judges aren’t kings. Their seats are not their personal possessions to bequeath to whom they see fit.

        I am glad good governance groups have started to study and write about this growing awful practice.

        There are TWO ways for a district court to be divided in divisions:
        By an act of congress (eg, Central District of California), which has happened mostly earlier in our republic, which a few more recent occurrences about 30 or so years ago.
        And, by the creation of a district court (eg, Northern Florida).

        All eyes now on Biden to see if he’ll diminish a president’s role in the nomination of judges.

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      • I can’t remember what judge it was but I want to say it was Steven Reinhard from the 9th circuit. Anyway they had written an opinion which would have been the deciding vote in the case. Well whoever the judge was they died before the opinion had been released but the court still tried to say his vote should count.

        That was over turned & the deceased judges opinion was removed. The written opinion said something to the effect that a judge is appointed for life, not the after life. Some of these judges have to be reminded of their role within our constitution. Biden must stand his ground here & under no circumstances withdraw Rodriguez’s nomination.

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      • “Hurd isn’t asking for a specific successor, he simply wants to have the new judge be based in Utica. Gillibrand should have picked someone who is from where the seat is being vacated, not someone from a duty station in Albany that already has 2 active judges allocated there.”

        I agree 100%! And similar situation for the 5th Circuit vacancy in Texas. Judge Costa’s vacant seat is in Houston, and I’m of the opinion that the candidate to replace him should be from Houston and not from anywhere else in Texas. Just like Judge Dennis vacant seat is in New Orleans, and Nominee Dana Douglas resides in New Orleans.

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      • The constitution doesn’t say anywhere that a president must pick a judicial nominee from a specific city, county or region of a state. As long as he picks one from that state, he is acting within his powers. Now the home state senators have blue slips to block a president from nominating somebody who then will not advance throughout the senate for a vote. Both New York senators have turned their blue slips in for Rodriguez so he should advance.

        Judge Hurd doesn’t not have any blue slips to block the nominee. Since he has turned in his retirement & the president accepted it when Biden nominated Rodriguez, I hope they use this situation to set a precedent that the judge can’t rescind once the nomination has been accepted.

        Both president Trump & Biden have already replaced an upstate circuit court judge with a judge from New York City. That’s the way the cookie crumbles. If the judge wants to pick judges he is more then welcome to run for senate or president.

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      • @Dequan

        Absolutely.

        Unrelatedly, how are you able to reply directly to the person you want? I think something changed on this site recently causing me not to see the “reply” options most of the time. I only see it for the original comment and the first response. That’s why I keep having to “reply to Frank.” This is a bit annoying.

        Like

      • The site only allows you to reply to the original comment of a thread. You can’t reply to each comment on a particular thread, only the original. But usually your replying to the last comment so it lines up just fine. If there are 10 comments on a particular thread & your trying to reply to comment number 6, you would have to write @ to the person that wrote the 6th comment. I’m usually on my phone or on a computer at work so I can reply pretty quickly so I’m usually replying to the most recent comment… Lol

        That’s one thing I wish would be improved on this otherwise great blog. That & allow post edits to correct spell check errors.

        Liked by 1 person

    • Hurd deserves impeachment for this as should any judge who tries to select his successor.

      As I said below, a judge in Utica should be determined based on the number of cases there. My strong suspicion is that there is not enough cases in Utica to warrant a full time judge there. If I am wrong, then Rodriguez should hold his chambers in Utica.

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  26. As to whether there should be a judge stationed at Utica, it depends on how many filings and cases there are in that area. If the number of cases are small compared to Albany and Syracuse areas, then there shouldn’t be a full time judge in Utica. There will still be a magistrate judge in Utica regardless and the cases where a district judge is necessary can be filed in Syracuse or Albany. Utica is less than an hour from Syracuse and 90 minutes from Albany. That is less than the time from a suburb to the federal court in some cities.

    The distribution of judges in a district or on a circuit court should be determined solely on the number of cases and filings in that area. I strongly support changing the distribution of district and circuit court judges among states and regions in the state to better reflect filings/cases.

    Like

  27. Shawn said : “If these these judges are not discharged and given a vote before the midterms, I’m going to vote GOP”.

    I’m the exact opposite…..If Ailito retired and Biden replaced him with James Ho, I’d still vote a straight Democratic ticket……I’m old enough to remember the 1980’s when Republicans back then where by and large mostly normal….Then when people like Gingrich, Delay, and right wing media took over (FOX, Limbaugh, etc) the GOP started a decline from which they have never recovered……After 1/6, they aren’t even a political party but a dangerous cult, sorta like something circa Jim Jones in 1978…

    Liked by 2 people

  28. Thank You to Senator Gillibrand (NY) and Mr Kang for clearing-up the Hurd debacle. Rodriguez has agreed to hold Chambers in Utica. But I would still like to make my point that since Judge Costa’s 5th Circuit seat is currently in Houston, (the 4th largest City in America), I would like to see the WH give some consideration to well-qualified candidates who reside and work in Houston. Going outside of Houston to fill a vacant seat that is currently located in Houston is a slap in the face in my humble opinion. Because I’m convinced that if that seat was in Dallas, Austin, or San Antonio, it would be filled with a local candidate just like Dennis’ seat in New Orleans.

    Like

    • @Angie

      I respect your opinion on which duty station a nominee should come from. I don’t respect when the out going judge weights in on the subject. They should be completely removed from picking their successor in any manner, even if what they want is for the good.

      I am happy to read Rodriguez has agreed to sit in the Utica duty station. Would you happen to have a link as to where you read that at? I want to update his Wikipedia page as this morning I updated it with the initial info about Hurd rescinding.

      Like

    • I don’t think this is a win.
      Even if it’s always been the expectation that Rodriguez would keep his chambers in Utica, the Hurd ultimatum is really unseemly. This will only embolden other judges to improperly condition their retirement with specific demands. A god-awful practice.

      Like

      • Depending on the distribution of number of filings and genuine cases in the district, Rodriguez should move his chambers to Albany after confirmation. If there are legitimately enough cases in the Utica area to justify one of 5 judges in the court, then it’s fair for him to stay in Utica. But I doubt it.

        Judge Hurd deserves to be impeached.

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      • @Shawn

        Your last sentence is exactly my point “Judge Hurd deserves to be impeached”. I think the number of filings, which duty station & etc. are all a different conversation then what should happen to judge Hurd regardless of if he has a good point or not. I would love for them to make an example out of him. There needs to be a shot across the bow sent to all future judges that tries something similar.

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      • Yup, I agree. Impeachment worthy!
        I’m not given to overheated rhetoric, but this is a growing practice that needs to be stamped out quickly!
        It’s one example after another. Where do you draw the line?
        Politics on the political side of judicial confirmation is fine, and even necessary (accountability). However, we shouldn’t allow judges to practice this sort of politics. Their legitimate role within our government is (deservedly) increasingly seen as too political already. The federal judiciary cannot afford to be seen to be even more so.
        I’m repulsed by this from the very first time I’ve heard of it and I really hope to see the end of it soon.

        Like

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