Scott Colom – Nominee to the U.S. District Court for the Northern District of Mississippi

Mississippi District Attorney Scott Colom has built a name for himself as a “progressive” prosecutor, frequently writing and advocating for changes in the justice system. Colom has now been tapped for a vacancy on the federal bench in Mississippi.

Background

A native of Columbus, Mississippi, Colom was born on December 25, 1983. He graduated from Millsaps College in 2005 and from the University of Wisconsin Law School in 2009. He subsequently spent two years as a staff lawyer for the Mississippi Center for Justice before joining Colom & Colom in private practice.

While maintaining his private practice, Colom also served as a city and municipal court judge as well as a part-time prosecutor in Columbus.

In 2015, Colom defeated 30-year-incumbent Forrest Allgood in a contentious race for district attorney for the 16th Judicial District of Mississippi, where Colom currently serves.

History of the Seat

Colom has been nominated for a vacancy on the U.S. District Court for the Northern District of Mississippi. This seat opened on November 1, 2021, when Judge Michael Mills took senior status. Colom was recommended to the White House in November 2021 by U.S. Rep. Bennie Thompson, the sole Democrat in Mississippi’s Congressional delegation.

Legal Experience

Colom started his legal career at the Mississippi Center for Justice, a nonprofit law firm focused on racial justice issues and then spent five years in private practice. Among the most notable cases he handled with the firm, Colom represented Taylor Bell, an Itawamba Agricultural School student who was disciplined by the school for publishing a rap song on Facebook that contained vulgar lyrics and criticized two coaches at the school. See Miss. Student Challenges Suspension Over Rap Song, A.P. State & Local Wire, Dec. 4, 2012. The district court dismissed Bell’s challenge, finding that the song was not protected under the First Amendment. See Bell v. Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834 (N.D. Miss. 2012). However, a divided panel of the Fifth Circuit reversed the dismissal, finding that the disciplining of a student for purely off-campus activities violates the First Amendment. See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280 (5th Cir. 2014). The full Fifth Circuit took the matter en banc and affirmed the district court’s decision. See Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015) (en banc).

Since 2016, Colom has served as district attorney for the 16th Judicial District in Mississippi, which covers four counties in Northeastern Mississippi. His campaign against longtime incumbent Forrest Allgood involved criticism of the incumbent’s “tough on crime” record and the number of overturned convictions under his watch. See Leon Neyfakh, How to Run Against a Tough-on-Crime DA – And Win, Slate, Nov. 12, 2015.

Notably, as D.A., Colom was asked to review criminal charges related to the shooting death of Ricky Ball from police officer Canyon Boykin. Colom controversially decided to hand the case to the Attorney General’s office for prosecution, stating that his office handling the case would have an appearance of bias given their close relationship with the police department. See Jeff Amy, District Attorney Hands Police Shooting Prosecution to State, A.P. State & Local, July 6, 2016. However, after Democratic Attorney General Jim Hood was replaced by Republican Lynn Fitch in the 2019 elections, Fitch dropped the charges against Boykin, prompting criticism by Colom, who claimed that he was not consulted in the decision. See DA: Bad Time to Drop Charge of Ex-Cop in Black Man’s Death, A.P. Int’l, May 29, 2020.

In other matters, Colom supported the release of Steven Jessie Harris, who had been held for 11 years without trial, to a state mental health facility. Emily Wagster Pettus, Man Held 11 Years Without Trial Will Go to Mental Facility, A.P. State & Local, June 14, 2016. He also dropped murder charges against Brittania Smith, noting that toxicology reports did not support that she had fatally poisoned her child. See Murder Charge Dropped Against West Point Woman, A.P. State & Local, July 11, 2016. Colom also dropped murder charges against Eddie Lee Howard, who spent 23 years on death row, after his conviction was based on debunked bite mark evidence. See Leah Willingham, Murder Charge Dismissed After Debunked Bite-Mark Testimony, A.P. Int’l, Jan. 11, 2021.

Statements and Writings

As a district attorney, Colom has frequently issued statements regarding prosecutions of his office. He has also issued statements on other issues as well. For example, in 2021, Colom was one of the politicians who was discovered to have unpaid campaign finance fines (in his case $50). See Taylor Vance, Mississippi Elected Officials, Candidates Owe Thousands in Unpaid Campaign Finance Fines, Northeast Mississippi Daily Journal, July 1, 2021. In the article, Colom blamed the failure to pay on a lack of notice from the Secretary of State’s office, noting that a predecessor had sent out email notifications. See id. (quoting Scott Colom).

Specifically, Colom has been vocal about the use of special prosecutors to prosecute cases of police misconduct, arguing that keeping the cases with the elected prosecutors’ offices creates an appearance of bias. See Why one North Mississippi D.A. Thinks Special Prosecutors Hold the Key in Police Shootings, Mississippi Today, Aug. 20, 2018.

In addition, Colom has frequently joined amicus briefs and letters with other prosecutors. For example, Colom signed onto an amicus brief with the Fifth Circuit opposing cash bail for misdemeanor defendants. See Attorney General Racine, Other Prosecutors and Law Enforcement Leaders Call for End to Cash Bail for Misdemeanor Defendants, States News Service, Aug. 10, 2017. Colom also signed onto a Supreme Court brief seeking to overturn a 241 year sentence imposed by Missouri on a juvenile. See 75 Judges, Prosecutors, Probation, Corrections, Law Enforcement Leaders Call on Supreme Court to Reject 241-Year Sentence for Juvenile, Targeted News Service, Mar. 15, 2018. Colom also joined an amicus brief seeking the overturning of a Missouri conviction after new evidence was unearthed. See Elected Prosecutors File State Supreme Court Brief in Support of New Trial for Innocent Man Behind Bars, States News Service, Feb. 11, 2020. He also wrote in support of reducing prison populations in response to the Covid-19 pandemic. See Scott Colom and Miriam Aroni Krinsky, Tragedy of COVID-19 in Prison Shows Need for Decarceration, The People’s Vanguard of Davis, July 3, 2020. See also Elected Prosecutors Call for Dramatic Reduction in Incarcerated and Detained Populations in Response to Coronavirus, The People’s Vanguard of Davis, Mar. 18, 2020.

Overall Assessment

Given Senate Judiciary Committee Chairman Durbin’s commitment to preserve home-state veto power over district court nominees, Colom makes for a curious choice from the Biden Administration for Mississippi. His record overall is strongly liberal and willing to court controversy. Additionally, at only 38, Colom is young enough to have a lengthy tenure on the court. One would think that these would be reasons for Mississippi’s home state senators to block his nomination.

However, the fact that Colom’s nomination has become public suggests that the senators have, at least tentatively, signed off on him. For all of the Administration’s judicial assertiveness, they have largely resisted the urge to override home-state senators on nominations, even in states where they could have arguably done so. As such, it will be interesting to see if Colom’s nomination represents part of a deal with Mississippi senators (perhaps as part of the state’s U.S. Attorney picks), or if Colom was able to strongly impress the senators in meeting with them. As Colom is also a good friend of Mississippi Republican Representative Trent Kelly, it is possible that Colom has fans on the other side of the aisle.

344 Comments

  1. I agree with your idea on the 7th Circuit.
    I would lean towards Garcia being nominated just because we need more Latino nominees but Myers would be a good choice as well.
    As for the other seat Republican seat we’ll flip in the 1st Circuit, I’m assuming that is Samantha Elliot’s nomination to lose.

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    • I’m sure Samantha Elliot will get some strong consideration. I wish it was one of three state ACLU lawyers…

      Gilles Bissonnette (c. 1981)
      Devon Chaffee
      Henry Klementowicz (c. 1987)

      My guess is it will probably be somebody not on any of our radars. Maybe a chief of staff or lawyer that currently does or has worked for one of the two senators.

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  2. Gosh, our gerontocracy seems to be on full display in the SJC hearing today. From Grassley to the introducers Sen. Murray and Sen. Markey and Rep. Clyburn, these people are looking ancient. No doubt this won’t bother those on here who love old judges. Did Murray really need another term?
    I think that Grassley’s plan is to retire before the end of his term. I think the GOP didn’t want to have another open seat in the midterm, so they forced him to run again. I was really hoping that Sen. Debbie Stabenow was going to retire in 2024. It would be much easier for a Dem replacement in a presidential year, where the electorate for her state will be more favorable to Dems.
    It never bothered me before now, but it seems glaring. You’d think that we’re an old country. I now see that Biden wants Pelosi to stay on. I am normally anti-term limit but this ossified leadership of old folks really is getting harder and harder to defend.
    No wonder they don’t mind old judges.

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    • I’m against term limits. I think the ultimate term limit are the voters. If they keep re-electing bad politicians then that’s on the voters, not the politician. And I think it hurts Democrats having term limits. I believe both presidents Clinton & Obama would have won a third term for instance.

      On another note, Durbin said both Graham & Scott returned their blue slips for DeAndrea Benjamin. Clyburn introduced her & said he has known her his entire life. It just feels good to have SJC hearings knowing we will now have two more years of them. I just uploaded her picture on Wikipedia. It feels good to be back into the swing of things.

      Liked by 2 people

      • No, I do not think so. Rick Scott and McConnell said multiple times that they are imploring him to run again and he was noncommittal until the time he made his mind up. You are talking about the Iowa red tide AFTER fact. Republicans didn’t want to have to pump money into yet another state.
        And Grassley filing to run again is of no moment. This is what is done. Our screwed up campaign finance laws create this permanent campaign season. This is how elected officials are able to continue to raise certain type of money, even if they don’t actually run again.
        As I said, I am convinced that he’ll retire before the end of his term. That way the GOP governor can appoint a temp replacement.

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  3. I’m okay with Todd Edelman, who was blocked from being confirmed six years ago getting a second chance to get a seat but Robert S. Ballou is too old IMO and as I said yesterday, really needs to be the last nominee in his or her late 50’s being nominated going forward, especially if Warnock wins and we have outright control of the Senate.

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    • Robert S. Ballou is not just too old but also too moderate to be the nominee from a blue state. The issue is the Virginia senators only recommended two nominees. From all accounts the other recommendation had some issues which means this was the nominee by default.

      On another note, senator Cruz is in full make an ass of himself mode today. I guess the midterm results really got to him. Senator Booker had an excellent rebuke. He pointed out the states with the highest murder rates are red states. He also reminded everyone crime started to go up under the Trump administration, not Biden’s. My favorite part was when he said, “You WILL be confirmed”. My God that was music to my ears.

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      • I think Cruz is salty not just over the midterms but the reality that their chances of doing to Joe Biden what was done to Barrack Obama in blocking vacancies isn’t going to happen.
        Nor is Biden going to be forced to accept deals like Bill Clinton had to where conservative judges have to be nominated in order to let more liberal ones through.
        When folks lament some of the Clinton judges who took senior status under Trump, it’s important to keep in mind that several of them such as Stanley Marcus and William Traxler were originally put on district courts by Republican presidents while others like Richard Tallman were long time Republican operatives.
        Frank Hull(she wanted to gut the ACA) might have been put on the courts under Clinton but she was a very conservative Blue Dog Clinton was forced to elevate.
        That will also not be happening under Biden.
        And if the worse happens with SCOTUS, we can now take advantage of it or protect a seat.

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  4. So overall was this a progressive panel ?….I didn’t have chance to see much of it, will look at when I get home later…

    Benjamin is not as conservative as Childs I hope.. But given that she has support of both SC senators means she’s not Rachel Bloomekatz type progressive…

    Then again, I think the WH needs to keep Graham happy, even with circuit court judges since he enables many nominees to leave committee with 12-10 votes instead of 11-11 which would mean even more discharge votes..

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    • Benjamin definitely has a progressive background. I think the difference between her & your normal liberal 50 year old black woman nominated in a red state is her as well as her husband have good relationships with Republicans from the state.

      As for the hearing overall, you can really feel from the mood in the room the effects of the midterm results. Durbin actually started the meeting a minute or two early which I don’t believe I’ve ever seen before. And senator Booker’s response to senator Cruz, particularly when he told Benjamin she WILL be confirmed had a certain swagger to it. I loved it.

      Liked by 1 person

  5. I know we have talked in depth about things that need to change in the next two years of Democrat majority such as ending blue slips for district court vacancies. Another thing that needs to change is the amount of time roll call votes take. They are over an hour for the María del R. Antongiorgi-Jordán vote right now. This is a non-controversial nominee. There is no reason this vote should take so long.

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    • Hooray. Democrats should make sure Colom is confirmed by the end of January at worse. I know we got the senate for 2 more years but I may consider moving him up to the next hearing in two weeks ahead of others announced earlier. That would give him an outside chance of being confirmed before the end of the year. He’s that good.

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  6. Given that Democrats now control the Senate for the next two years, the only nominee who has to be confirmed before the end of the year would be Jeffery P. Hopkins of Ohio.
    I fully expect Vance would use his blue slip to block him in the new year if he’s not confirmed before then.

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  7. It’s (semi-)official, Feinstein won’t seek to be third in line of presidential succession.
    Does anyone who if this has ever happened before? Where someone who’s next in line by seniority declines to take up the post?
    I guess Patty Murray is next in line.

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    • WOW… An aide had to jump in & remind her she already issued a statement. For the love of God please don’t let her run for reelection. I’m not worried about her losing, I’m worried about her winning.

      I don’t know if any senator has ever passed up on being the senate pro temp before. It would be interesting to find out. I mean Strom Thurmond was damn near 100 & still served while being wheeled around in a wheelchair so compared to him, Feinstein is a spring chicken.

      Liked by 1 person

  8. Wildly impressed that after being off a month, the Senate has sped forward and confirmed……one district court nominee so far this week.

    No cloture votes tomorrow. No unanimous consents (I know they’re rare, but there will be some by end of the session).

    Lots of rhetoric from Schumer, certainly. But one confirmation, only.

    There have to be other district court nominees that McConnell doesn’t feel like going to the mat on in the current bunch who’ve cleared SJC. But…nothing.

    Meanwhile, congratulations to Judge Antongiorgi-Jordan on her confirmation and thanks to her for her service.

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  9. Is Heather Gatnarek of Kentucky on anyone’s list for a federal judgeship there?
    She just argued against the state’s abortion ban in front of the Kentucky Supreme Court. If Dems retain blue slips for district courts she’ll never be a nominee. Unless as part of a package deal (god only know how awful that full package would be: 3 Merediths for 1 Gatnarek?). But, if Biden isn’t too afraid of McConnell, she could be placed on the 6th Circuit if there’s ever a vacancy. It would be poetic justice for McConnell’s blockade of Obama’s nominees and for nearly foisting Chad Meredith on us.

    It is a week and a day after the midterms, today’s a good day to announce nominees for the 1st, 4th, and 5th circuits.

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    • I haven’t bothered looking at potential Kentucky nominees because as you said, unless blue slips are scrapped, there’s no reason to waste the time. Something tells me even if Durbin did get rid of blue slips, it wouldn’t be absolute. It’s more than likely to be targeted to senators that won’t work in good faith. That wouldn’t be Mitch McConnell. So unless Durbin completely got rid of blue slips, there’s little hope for Kentucky to get liberal judges without a deal that would be horrible & worse than leaving the seats vacant.

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  10. It’s going to be fascinating to see what Durbin does with blue slips. Personally I am hesitant about getting rid of the rule completely, but perhaps there is a middle ground that could be forged. Maybe we give home states senators 6 or 12 months to come with a reasonable nominee and if not, Biden nominates a 40 year old liberal.

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  11. What is deal with Senator Sasse?…He accepted an offer to be a University president I believe….So if he’s out for couple weeks they should be able to move on most nominees….

    Warnock probably will be out til after his election, since its just around corner..He should be back 12/7

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    • Sasse doesn’t start the UF job until February but I’m sure he will miss most of the rest of the year to prepare. The reason he doesn’t want to resign now is because I believe the governor elect will nominate the current governor to his seat. If he retired now it would look bad for the governor to appoint himself.

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  12. Saw an interview with Patrick Leahy and have to say I’m not sad to see him retire.
    His wanting to cling to tradition with the blue slip rule gifted McConnell over a dozen Circuit court seats he shouldn’t have had and cost us a change to get liberal majorities on the 7th and 11th circuits while narrowing the margin in other courts such as the 5th and 6th.
    Thank goodness Durbin didn’t follow that stupidity anymore.
    As for keeping it in place for district court seats, I’m on board for now given that there are district court seats in blue states then red ones but if they keep obstructing, the blue slip has gotta go for that too.

    Liked by 1 person

  13. Ben Sasse’s wife suffered a major seizure so he will remain in Nebraska for a few days, probably until the senate returns after Thanksgiving. With Sasse’s absence, Warnock’s absence is a wash, for now.
    Sasse will leave the senate early next year after Nebraska’s new governor is sworn in. That way Ricketts can be appointed. Don’t expect any delays or periods of the GOP being down one seat. Sasse’s replacement will start the day his resignation takes effect.

    With Sasse’s departure, a GOP slot will open on SJC. We’ve spoken about Dem newcomers. Who do you think or want the GOP replacement to be?
    For me, I think it could be Eric Schmitt from MO, because he’s the attorney general, just like Hawley. I WANT it to be JD Vance. I want to see his trumpified manner backfire.

    What I really want is for the membership to decrease to 19.

    Liked by 1 person

    • I think membership decreasing back down to 19 would be good as well. In my opinion the committee is too big. I would simply let Leahy and Sasse roll off and if Warnock wins then a second GOPer would go as well.

      If they want to keep it at 22 like in the previous committees then the GOP roster would stay the same of course and the Dems would have 2 seats to fill. I’d love to see Warnock potentially get on and increase his profile a bit if he’s interested. Maybe Peter Welch or even an incumbent like Gary Peters or Brian Schatz would good additions too.

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    • I figured he would be in town for one or two days this week. Unfortunately, Warnock being back won’t do anything for judges getting confirmed. Schumer needs to send a cloture motion to the desk first. Then at best, 48 hours later they can vote on cloture. So, if he sent a motion today, the earliest we could get a cloture vote was Monday without a unanimous consent. Well unless they were going to stay in town to vote this Friday… Haaaaaaaaaaa… Sorry, I had to laugh at the thought of that.

      I do believe he could do a discharge vote without advance notice, however. Perhaps we can see some movement on one of those albeit I doubt it.

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      • From my understanding when a cloture motion is sent to the desk, you have to wait 48 hours to vote. That is why he sent the gay marriage cloture motion on Monday but had to wait for today (Wednesday) to vote.

        There are currently no cloture motions sent to the desk which means if he sent one right now (Wednesday), the earliest they could vote is Friday. Since we all know Friday is out of the question, Monday is actually the first day they can vote… Lol

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  14. The Marriage Act is a useful vote, but yesterday they decided to waste time and vote on whether to end the COVID-19 national emergency (which Biden has promised to veto). 13 Democrats along with all 49 Republicans present voted in favor.

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  15. Senator Feinstein was showing her age sadly in this mornings SJC executive business meeting. She asked senator Leahy if he could speak up while he was talking. He seemed to be talking like he normally does but I figured maybe the volume was up on my phone I was watching it on & it was lower in person. Remember Feinstein sits directly next to him in the SJC.

    A few minutes later when chairman Durbin was speaking she asked him if he could speak up. He angrily responded “I’m speaking as loud as I can” before catching himself & continuing on with calling for the roll vote. I could tell Durbin was irritated in his immediate reaction. I am really happy Feinstein chose not to take the senate pro temp position & I truly hope she is talked out of running for reelection.

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    • I agree with Zack, it would probably be for the best if she decided to retire some time in 2023 once the dust settles a bit. I’m not really one of the anti Feinstein folks but at a certain point in life it’s time to step aside, help someone else up, and enjoy the fruits of your labor.

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    • While I agree that Feinstein is in decline, I don’t exactly agree with this mindset. I think it’s wrong and ableist (an article a few weeks ago said that John Fetterman is a test of voters’ comfortability with disability). Accommodations should be made for Senators’ disabilities. Feinstein is too old to learn ASL, but there are other ways to accommodate her hardness of hearing (and any other Senators who might have hearing issues), such as having automation pick up Durbin’s words and print them on a big screen.

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  16. Whoever said they won’t vote Democrat for House again as long as Clyburn’s in leadership (I think it was Shawn) , you can start voting Democrat again. Pelosi decided to step down from leadership, and subsequently Hoyer and Clyburn announced they will also leave Dem leadership.

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    • It was @Shawn that said that about the Democrat leadership. I saw Pelosi say she wasn’t running for leadership again. I didn’t know both Hoyer and Clyburn said the same thing too. This is a MAJOR shift in Democrat politics. I know Hakim Jeffries is the front runner for Speaker. I didn’t even consider those two also leaving so I’m not sure who will take their places.

      As for Feinstein’s hearing, if that was the only issue then I would agree. But she has had numerous other issues over the past 4 years or so that is not related to her hearing. Those issues all seem to be age related. Now I don’t go as far as some to she should resign. the people of California elected her to a six-year term & I think she deserves to finish that term if she so choses. I only want to make sure she doesn’t run for re-election. I can’t imagine another six years of what I saw this morning. I’ve never saw Durbin look so frustrated in the SJC because of a Democrat.

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  17. Mike Lee refuses to lift his hold on 30 hours of post cloture debate, so now the senate has to stay until 10:00. If I was a Republican I’d be furious with him.

    Hopefully Schumer files cloture on Pryor and Garcia so we can get rolling after Thanksgiving.

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  18. Still disappointed with this week. If @Frank is right, we could have gotten another PR judge confirmed this week, and we might have gotten cloture on Pryor and Douglas, who have home-state R support. So far Schumer’s promises to focus on judges has gotten us 1 district court judge this week. One. The PR court could have used another active duty judge, but no go. Sad.

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    • I’m actually most disappointed we didn’t get a new batch of nominees this week. Every pending nominee will be confirmed either this year or by February, barring some major change or incident.

      What we need most now is another batch. There are still 118 current and future judicial vacancies, and we have a nominee for only 56 of them. Out of the 63 vacant judgeships without a nominee, four of which existed before Biden even took office, 20 are in states with two Democratic senators.

      I want to get all of the blue state seats with a nominee so the spotlight will be bright on Durbin to make a decision on blue slips next year.

      The SJC should have a hearing on 11/30 & 12/14. There’s only one circuit court nominee left that needs a hearing so the next batch’s circuit court nominees could be in the 12/14 hearing if we got it announced in the next few days.

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  19. Tomorrow will be the first votes on sending judicial nominees to the Senate floor since Democrats clinched the Senate.
    I wonder if Republicans are going to be jerks and force discharge votes out of spite or if they’ll be adults and let most of the nominees through, especially knowing they WILL be confirmed one way or another.

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    • Man, talk about baby steps….Another week off, and all we get are 2 district court judges….Schumer talks the talk about importance of judges, but he moves 100x slower than a turtle with a torn ACL (note the football injury analogy)…..At this pace, the current crop of nominees will all be confirmed in the year 4156

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      • I’m assuming he’s only voting on nominees he know will get confirmed with the current 50-49 Republican majority in case all 50 GOP senators show up. Once the runoff is finished, I assume we will get some of the heavy hitters. Hopefully we get another rapid confirmation in succession like we did the last day before the Christmas recess last year.

        Liked by 1 person

      • There was legislation that had to be passed as well, especially the marriage equality bill which is what was being voted on today and you can’t do both at the same time.
        Also, looks like all of the judicial nominees that could have been processed were held over so it will be two more weeks before they can be sent to the floor.
        Annoying but it is what it is.

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  20. I feel pretty strongly that we’ll get a barrage of district nominees the last week of December to hopefully clear the deck there. That should take us up to 80 district judges confirmed or more.

    Hopefully they can find time to at least confirm the 5 appeals judges ready for floor votes as well.

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    • We will get nominees for the 4 open circuit court seats & probably before the end of February. The second part of your question is of the highest of importance. I’m hoping we get at least 11 more circuit court vacancies by the end of next year. That would mean Biden could fill more than the 54 circuit court seats Trump filled.

      That’s another reason it’s important to confirm as many nominees in this lame duck. So Schumer can have plenty of flor time as the additional retirements pile up. Hopefully Biden can not just pass Trump’s 54 circuit court judges, but also pass his 230 judges overall.

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      • I think we will get at least one of the circuit court nominees before January. Even if they are announced after next week but before the end of the year they won’t be in the 12/24 hearing. Next week is the last opportunity to nominate them & they appear at that hearing & more so early next week.

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      • I’ve been assuming they’ll just have 5 or 6 district nominees and no Circuit (returning to the normal 2 circuit/3 district format in January) but I very well may be wrong. I think Democrats lost some seats last week it would have been different.

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    • Does anybody know why it takes so long for some judges to take the oath & get sworn in? Childs received her commission on July 25, 2022. I’m just curious why she’s now getting sworn in on November 17th. It seems to be pretty common. I get it when we had Covid but don’t understand why now.

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      • Dequan, we spoke about this a few times so I’ll give a brief recap.
        The judicial commission (a sample of which I’ve previously posted) is just an official piece of paper that speaks to a judge’s character and the fact that with the advice and consent of the Senate, the president is appointing the judge to a court. That represents the final confirmation/appointment action. The issuance of the commission can be delayed by the appointee, so that they can finish up prior work.
        Then, with that commission, the judge can then be sworn in for both the constitutional and judicial oaths. Once those oaths have been administered, a judge can then start performing the duties of her new office. What we often see, like in this case, is a *ceremonial* swearing in with pomp and circumstance. It’s like getting married at a county clerk’s office and then having a big fairytale wedding in a cathedral.
        Childs has been sitting on panels since September I think (don’t quote me), which means she’s already taken those oaths. If you want a big swearing-in ceremony with important people, it takes a while to coordinate all those calendars, which is why it comes later.

        Liked by 1 person

      • Ah ok got it. So KBJ swearing Childs in has no official meaning. Everything that officially makes Childs a judge on the DC circuit has already happened. The KBJ swearing in was just basically for a public viewing but even without it she’s just as much of a judge as any other DC circuit court judge who’s been serving for decades. Ok got it

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  21. Seeing Ron DeSantis’s law attempting to stifle free speech get struck down reminds me of the fact if not for Patrick Leahy’s stupidity on blue slips, the 11th Circuit would be a majority Democratic court right now that would likely keep this law struck down.
    Back in 2012, a Reagan judge, James Larry Edmondson
    took senior status in GA and in 2013 a George Sr. judge named Joel Dubina took senior status in AL.
    Instead of allowing Obama to fill those seats, Leahy let Alabama senators block any nominee for the AL seat with the blue slip.
    Likewise in GA, there were two vacancies on the 11th Circuit from there.
    In order to get Jill Pryor through for one vacancy, Obama also had to accept George Sr. Judge Julie Carnes for the other seat, similar to what Bill Clinton had to do, even though they had the majority.
    Carnes would end up taking senior status under Trump so a younger right wing hack could replace her, which is what many people opposed to the deal at the time said.
    Like I’ve said before, next to McConnell, no one is responsible for allowing 54 Circuit court nominees to be confirmed under Trump then Leahy and his stupid determination to cling to Senate norms Republicans had already made clear under George W they wouldn’t honor.
    All I can say on his retirement is thank goodness his stupidity isn’t being followed anymore for circuit court seats.

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    • Leahy’s adherence to blue slips is definitely one of the reasons why Republicans have the lower courts. I understand not wanting to get rid of the filibuster before they tried to block 3 seats on the DC circuit but the blue slips was unilateral disarmament. Senator Leahy thank you for your service & cameos in the Batman trilogies. Now happy retirement.

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      • The worst example of Leahy’s blue slip stupidity was the vacancy in the 7th Circuit that Ron Johnson eventually got to fill with Michael Brennan, a hypocritical Federalist Society hack who said blue slips should be honored no matter under Obama but had a completely different take under Trump.
        That seat should have been Victoria Norse’s and the fact Leahy let one person block a Circuit court seat for FOUR years when it should and could have been filled is malpractice of the highest order.
        As you said, I enjoyed his cameo in batman movies but as far as his retirement, not sad to see him go.

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    • Exactly. As somebody that has wanted the federal judiciary to be a top priority for progressives for the past two decades, the rest of this year’s focus should be the gay marriage bill, raising the debt ceiling enough to cover the next two years (If not longer), any Ukraine package, a possible immigration bill & any other legislation they think they can get 10 Republicans to vote for. Starting January, we should see a nonstop juggernaut of judicial confirmations. That’s one reason I’m hoping for another batch by the end of next week & Durbin eventually getting rid of blue slips for district court vacancies.

      Like

  22. Yup, come January, the house is going to be nothing but a right wing freak show.
    Best to do what we can on legislation and then confirm what judges we can knowing we have the majority.
    Hopefully Warnock keeps his seat so it will be an outright one.

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    • I truly hope we get 11 more circuit court judges to retire by the end of next year. That is the magic number that would make sure Biden surpasses Trump’s 54 judges. If we can get 11 to announce before the end of next year that would give Biden a full year to fill those seats. That way any retirements in 2024 would just be icing on the cake to add on to pass Trump.

      Like

      • John Collins mentioned that there are 16 current, D appointed, circuit court judges eligible for retirement with another who will become eligible between 2023-24. I think it’s fair to think perhaps half of that number will take Biden up on it and do so.

        There are also 25 R appointees that are retirement eligible as well, with 3 more becoming eligible during 2023-24. I would certainly expect a much lower percentage out of this group, but there very well may be a couple as several of them are quite elderly.

        Also the possibility that someone else will simply leave before they are eligible (like Costa did this year) or pass away on the job (Kanne).

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      • Sans Robert King and Johnnie Rawlinson, the only other Clinton judges I see sticking around are Ronald Gould(IMO he’s the one who really needs to go on senior status ASAP) and Carl Stewart of the 5th.
        Beyond that, the rest of them can and should take senior status sooner versus later.
        As for Obama judges, 3rd Circuit Judge Joseph A. Greenaway Jr became eligible for senior status last week.
        Let’s see if he takes senior status soon and who the nominee could possibly be*
        *If a vacancy arises, the name Christine O’Hearn better not be anywhere near it.

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      • Definitely. For me it’s not so much if at least 11 more will leave the bench. It’s more so WHEN they will leave. I think any circuit court retirements that are announced before the end of 2023 will definitely have a replacement confirmed by Biden. Once you start to get into announcements made in 2024, that’s when it’s possible the seat might not get filled. For instance, Kanne died June 16, 2022, yet we still do not have a nominee, let alone confirmation. And the Indiana senators worked in good faith with the other 7th vacancy so imagine a state where the senators don’t work in good faith. Imagine another 10th Kansas scenario in 2024. So for me the key is go get those 11 vacancies announced before the end of 2023. That way we are assured to pass Trump’s 54.

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      • Haaaaaaa… If Christine O’Hearn was the nominee for a circuit court seat, I would openly call for Biden’s impeachment & Menedez to lose re-election. The good news is there are soooo many good choices from New Jersey that I see no way of that happening. Just on the New Jersey SCOTUS alone there are two spectacular choices. Had New Jersey state Democrats did what I wanted & scrapped blue slips, Governor Murphy could have put three spectacular choices on the court instead of being forced to put a Republican on the SCOTUS.

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  23. Definitely. Although to be fair we have a huge backlog of nominees working their way through, so that’s why we probably didn’t get a Kanne replacement done in time.

    If there is a similar opening in say June 2024 with the decks mostly clear, I fully expect a nomination to be made and confirmed prior to the end of the year.

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  24. Fair enough haha. They did play with fire and leave 4 circuit court seats unfilled when they probably could have twisted the rules and squeeze in extra hearings. Durbin and Schumer were lucky to have won control of the senate for another two years.

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    • Definitely. And there in lies the difference between Democrats & Republicans. Democrats may LUCK out & pass Trump’s 54 judges. Republicans use their blue slip privilege to block Democrats from filling vacancies only to turn around & eliminate them when they are in power. Republicans block Democrats from filling a SCOTUS seat in an election year then turn around & fill their own seats after the election has already begun.

      While I’m happy Democrats won two more years in the majority, had they lost I would be absolutely pissed at them going on vacation the entire months of August & October, coming back only to work 4 days (It would have been 3 days had senator Lee not refused to give unanimous consent) & confirm one district court judge in the process, all while we have 4 circuit court seats still with no nominee as of a week before Thanksgiving.

      So yes Democrats are lucky. It would be nice if we are lucky in 2024 but I’d rather they just start playing hardball instead… Lol

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    • Sorry my math was off. If Biden fills the 37 circuit court nominations he announced so far & the 4 other vacant seats without a nominee, we will need 14 more circuit court judges to leave the bench to pass Trump’s 54. I said 11 more earlier today. Hopefully we can get those 14 retirements by the end of next year.

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  25. Democrats did get lucky on the four remaining vacancies no doubt but I will also say with the 50/50 majority they had they still managed to get far more judges confirmed then I thought they would, especially given the history of Republican obstruction on them.
    If we get an outright majority, they better put the pedal to the metal though, as there will be no need to play nice to avoid deadlocks anymore.

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    • That’s very true. I was expecting more of what we saw from senator Lee yesterday, making the senate burn every minute of cloture time, particularly the 30 hours for each circuit court nominee. I will assume they haven’t in exchange for a 3 day work week. I definitely thought we would see at least one SJC boycott but to his credit, senator Grassley said he would never do that & kept his word.

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  26. So what happens if a GOP House starts doing impeachment a palooza….I think the senate must hold a trial if the House impeaches someone….So if the GOP impeaches people for no reason other than revenge against political enemies, senate still has to have a trial.

    What a waste of time this would be, senate couldn’t conduct legitimate business (ie confirming nominees) because it would have to hold phony impeachment hearings…

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    • From what I understand, Democrats could still do judicial nominations during this time, they just couldn’t do it in the same day as an impeachment trial.
      Bigger thing is though with such a small margin, I don’t think we’ll be seeing impeachment shows like we would have otherwise.
      Way too many Republicans in vulnerable districts for that to happen.

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  27. From the looks of it, sans a couple of nominees that are being held up, it looks like the last Circuit court nominee and district court nominees that were nominated this year will have hearings before the year is out.
    How many of them are confirmed before next year is another issue but they WILL all be confirmed.

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    • There’s too much legislation that needs to get done before the end of the year when the GOP will take over the House to get all current nominees pending on the floor confirmed. The main thing now is for Biden to announce another batch, preferably before the end of this week. The second most important thing is for Durbin to hold two more SJC hearings before the end of the year. The third most important thing is for 14 more circuit court judges to announce retirement, hopefully before the end of next year to guarantee Biden will pass Trump’s 54.

      Nominees & SJC hearings will need to pick up the pace in order for Biden to pass Trump’s 230 judges. I’m not too worried about Schumer confirming them over the next two years with very little legislation happening. And that’s not even taking into account Warnock winning the runoff which would make the process much easier.

      I don’t expect as many attendance issues over the next two years with Covid likely not detailing the Democrat majority for a week at a time. Also with senator Leahy retired, that’s one less senator to worry about missing time because of his age.

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  28. I agree, I’m not nearly as worried about attendance. Especially so if Warnock makes it 51.

    I do still think we get most of the district nominees confirmed, if not all of them. Those take such little time and also I expect another big batch to close out the session. We’ll see how many they get through the week though.

    With circuit judges, I expect Schumer to at least pass Trumps 30. There’s been a fair bit of comparison and competition between the two administrations so that would mean the five currently awaiting floor votes plus maybe Kahn and Johnstone. But obviously those are tougher because of the time limit.

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    • I think there’s a good chance we can get 14 more circuit court judges to retire, albeit I don’t know if they all will do so before the end of 2023 like I would want. Then the question would be how late in 2024 will some happy to determine if Biden will have enough time to get a nominee & Schumer get them confirmed to pass Trump’s 54.

      Obviously Biden won’t match Trump’s 3 SCOTUS justices without some major surprise’s happening so I’m mostly focused on at least passing him on the lower courts.

      That brings us to can Biden pass 176 district court judges. I don’t see that happening without Durbin ditching blue slips & even then, he would probably need to do that by the end of September of next year. If he waits until 2024 to do it, I’m it sure Biden would have enough time to fill all the red seats in less than a year. I’m actually not as worried about Biden passing 176 district court judges as I am the 54 circuit court judges. Trump surprisingly made a lot of deals with Democrat senators & we have a fair number of Trump judges that were Democrats. If Biden gets close to that number but continues the pace of moderates for the Republican picks in red & purple state’s, a number close to 176 without passing it will still be comparable.

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      • Can you tell us where you see Biden getting 14 possible nomination opportunities? I am highly dubious about this. I think Biden will eventually make a mark on the judiciary but not to the extent that Trump did. Not in terms of quantity or quality.

        Quantity
        An unlikely amount of Obama and probably all remaining Clinton circuit court judges will have to retire to help Biden reach that goal. Don’t assume that just because a judge is liberal that they’d want to assume senior status when it’s most politically opportune. They still have to worry about their livelihood and just the fact that they actually might enjoy being an active judge.
        Also, let’s not make the party of the appointing president obscure the fact that some Dem appointed judges are not actually liberals who’d want a liberal president to name their successor.

        Quality
        Assuming that most (minus Justin Walker) Trump and Biden judges are qualified, we’ll use judicial philosophy as the metric here. Trump appointed mostly hard right judges who are young enough to serve for decades. It’s not unlikely for some to serve for 50 years. These nominees are already having a huge impact on the law. Look at the 9th and 11th circuits!
        Biden’s nominees have mainly been more middle of the road, even if they’re more professionally diverse. It’s been a faulty assumption (IMO) on this site that most public defenders will be super liberal. And since Biden is mostly still honoring blue slips for circuit nominees, his number of moderate judges won’t balance out Trump’s staunch right wingers. Of the two times his nominees didn’t get a blue slip, only one is a clear progressive. While his nomination was good and welcome, Andre Mathis doesn’t strike me as a liberal. So, that’s about 50% in two years. A larger number will be consensus nominees.
        I thank god for two more years of judicial confirmations, but I’m under no illusion that a lot more has to happen to match Trump’s record.

        Also @Dequan, Chris Van Hollen and Ben Ray Lujan are much younger than Pat Leahy. 51 will definitely help with attendance but COVID isn’t the only concern. There is another bright spot for Dems here, maybe more GOP senators will run for president, taking them away from the senate.

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      • So for me, getting to 14 more circuit court vacancies is a combination of things. I think most would come from Clinton & Obama judges retiring. Then there is age. There’s one judge on the federal circuit that is approaching 100 for instance. And we have numerous Republican appointees that are well past their 80’s. While I wish them good health, nobody will live forever. I don’t think it’s out of the relm to assume 2 or 3 of them just might not make it past 2024.

        Then that takes us to the unexpected. Nobody would have guessed judge Kanne’s seat would become vacant after he rescinded his retirement under Trump. While I know it may seem as though these judges are immune from the problems the rest of society has, I expect a could have vacancies over the next two years that are completely unexpected. I think the combination of all that can get Biden to 14.

        As for your other point, you are correct the president that nominated a judge isn’t a direct factor in their jurisprudence. But I think now more then ever it’s a really good indicator. I’m not so sure I agree with you that Andre Mathis & others won’t end up being liberal. I think there are different approaches to how judges write their opinions. Justices Sotomayor & Kagan are two examples. However at the end of the day their votes usually end up being the same. That’s what I care about. I know others care more about their writings & leaving a blue print for future judges. Yes that is important but at the end of the day what I care about most is (Sorry I forgot which Justice said this last century) how to count to five on the SCOTUS & Hoe to count to two on an en blac circuit court sitting.

        Liked by 1 person

      • @Gavi: As far as your point that there are some Democratic appointed judges that are not actually liberals, the same could be said for certain Republican appointed judges. And for quality, I think that the diversity of backgrounds (while not sacrificing experience or for the most part nominating hacks) with which his nominees have come from have made Biden’s judges somewhat better than other Democrats thus far.

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  29. So for the Marriage Equality Act, they’ll have the cloture vote….Then will this be one of those bills where they vote on amendments for 12 hours before the bill FINALLY passes….

    Then at that point, I think we can return to judges….With all the nominees pending, 4 discharge votes needed, 5 if you assume Julie Rikelman will be 11-11 in committee…
    Unless Schumer keeps senate in a weekend or two, can’t see how they can complete the pending nominees, including the ones who had their hearing last Wed..

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    • Just a guess here, but I could see the next few weeks playing out something like this:

      Nov 28- Dec 1: Gay Marriage, several district confirmations, Pryor Cloture

      Dec 5-8: Pryor, Garcia, Douglas, Defense Bill

      Dec 12-18: Electoral Count Act, Debt Ceiling

      Dec 19-21: Spending Bill, District Vote a Rama, hopefully TMR and Chung

      Probably overly optimistic, but I think the above is possible. I am not sure if the debt ceiling and spending bills could be combined into one, someone smarter than me can weigh in on that. But I feel confident that the spending bill is the last thing they’ll tackle, followed by a vote a rama on judges.

      Liked by 1 person

  30. As I’ve said before, we can’t undo all the damage of Trump’s four years but us keeping the Senate the next couple of years at least ensures we won’t be seeing any more flips of seats if something horrible happens to a Democratic SCOTUS judge etc. and gives us a chance to ensure the remaining Clinton/older Obama judges who wish to take senior status can do so without worrying about a right wing Federalist Society hack taking their seat.

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    • The senate only had 15 days left in session assuming they work the normal Monday to Thursday schedule the rest of the year. I know some of the legislation will take more than one day. I figure out if the 15 days, Warnock will be out for about 8 of them.

      They may dedicate 5 of the 15 days to judges. So it depends on how they handle it. They can knock out all of the district court nominees in that time or take a day to confirm a circuit court nominee & decide how many of them they want to confirm before the end of the year. And of course that’s assuming they don’t do any of the discharges this year.

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  31. I think it boils down to Warnock.
    If he wins, the deadlocked nominees will simply get pushed to next year where they won’t have to waste floor time on discharge votes.
    Will also be watching retirements.
    At this point, I fully expect most of the remaining Clinton Circuit Court and older Obama judges to take senior status in the next year, while on the Republican side, I will be shocked if Ilana Rover also doesn’t do so.
    Despite being a Republican, she is easily among the most liberal members on the 7th Circuit and I can’t imagine she’s been happy with the direction the court has gone in with the addition of the four Trump judges(Leahy’s stupidity on blue slips played a part in that.)
    With Democrats now having the Senate, I can see her possibly being the only Republican appointed judge on the Circuit courts left who will step aside to let a younger liberal/moderate jurist replace her.
    Have to wait and see.

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    • I truly hope we get an 8th circuit court judge retirement in the next 2 years. I’m tired of Jane Kelley being both the only Democrat appointee & only woman on that court.

      There are three judges on that court that can retire today. The Minnesota judge is the oldest by more than a decade. I may fly to DC, sleep outside in the cold overnight & attend the SJC hearing if either of the Missouri or Arkansas judges retire just to see Hawley or Cotton’s heads explode at Biden filling a seat from their state.

      It’s highly unlikely any of them will retire but maybe Biden will get a little luck.

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      • The wailing and hypocrisy coming from Cotton or Hawley would be epic and worth seeing for sure.
        As to your second point, not to be morbid but the only way I see more vacancies on the Republican side happening is via the Michael Kanne route in judges passing away from natural causes due to old age.

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      • Outside of a few Republican appointees, that is probably the only way vacancies will happen. But two years is a long time. A lot can happen. Biden got to flip the 1st (Puerto Rico) & Kanne seat in two years because of death. Let’s see what the next two years holds.

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      • The 8th circuit has a lot of GOP nominees but several of them are moderate-ish.

        Out of the 3 who can retire today, Benton & Shepard are solidly conservative, while Loken seems uninterested in taking senior status at all (Loken will probably opt to keep his seat until he dies). However, I think there’s a chance Vence Smith (a center-right Bush judge & the 8th circuit’s only African-American) steps aside after his term as chief ends in March 2024.

        Although we won’t see a majority on the 8th circuit for a long time, having 2 or 3 Democratic seats instead of 1 is super useful due to the 3 judge panels. Jane Kelly has been on an unusually large number of big cases, though dissenting most of the time. However, in 2020 the 8th circuit (of all circuits) ruled in favor of abortion rights in Ohio. Kelly and Reagan judge Wollman were in the majority. I also remember a pretty recent panel with Kelly & Menendez (a district judge in Minnesota) making a Democratic majority on a panel about some Biden COVID policy. Loken was the 3rd judge, and the panel unanimously upheld the Biden COVID policy (I still can’t figure out which 2-3 judges on the 8th circuit struck down student loan forgiveness)

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  32. Yup.
    In the meantime, I’m waiting for the day Maria Kahn gets confirmed to the 2nd Circuit (she better be the last nominee in his or her late 50’s though.)
    Yes, she’s replacing a Democratic judge but Cabranes is the most conservative Democratic appointee left on a circuit court and IMO, will count as a true flip.
    I f nothing else, the 2nd Circuit is a reminder that elections do matter.
    If Trump had gotten a 2nd term and Republicans kept the Senate, the 2nd Circuit would be among the most conservative courts in the country due to the deaths of Robert Katzmann and Peter Hall, members of the liberal/moderate part of the court.
    Instead the Democratic side won and that didn’t happen and we will soon have a majority on that court.

    Like

    • Speaking of the 2nd circuit, I believe the 1st, 2nd & 11th circuits won’t see any vacancies for the rest of Biden’s term & probably the foreseeable future. The only exception would be a SCOTUS vacancy.

      I already said on previous post that I’ve correctly guessed the last three SCOTUS picks & my off song favorite for any non Sotomayor vacancy would be Alison Nathan. I believe if Roberts somehow left the bench, Biden would upgrade either Kagan or KBJ & pick Nathan to replace their seat.

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      • Should be noted Roberts has had some health issues so it’s possible he could leave the bench sooner rather then later.
        Nathan would be an outstanding choice to replace KBJ or Kagan if they were elevated in case that happened.
        As to the circuits you mentioned, William J. Kayatta Jr. of ME will be eligible for senior status next year I believe while Clinton Judge Charles Wilson of the 11th Circuit can take it at any time.
        As to the 2nd Circuit, you’re right.
        Raymond Lohier is the only Obama judge left on the court and will only be turning 57 in a week and a half.
        Given the mistakes made with nominating older judges (which led to two flips under Trump on the 2nd) it was amazing to see an example of Obama and Democrats getting it right with a moderate judge who was only in his 40’s when confirmed.
        Darn shame that wasn’t repeated with a lot of other Obama nominees and in some cases Biden though the latest nominees HAVE been better in that regards for the most part.

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      • I thought of William J. Kayatta Jr. but I figured he will want to enjoy being on the only circuit court out of the 13 completely made up of Democrat appointees for a few years. He will be in his low 70’s over the next two years so I didn’t put him on my radar to leave the bench.

        Charles Wilson will also be in his low 70’s. It would be phenomenal if he did decide to step down. Florida has some amazing talent that could be given consideration. I would expect Rubio & Scott to not work in good faith at all if he did retire.

        I didn’t mention this before but I was thinking to myself earlier. With all of the Texas district court vacancies, if I was in The White House counsel’s office I would propose a deal with Coryn & Cruz. I would tell them I will negotiate a 5th circuit court nominee within reason such as one of the current district court judges (Not one of the Obama judges that were negotiated Republican picks) in exchange for allowing all Democrats for the open district court seats. No 3 for 1 type deals like in Pennsylvania, all Democrats. I would tell them no flaking liberals but left of center Democrats. If they refuse, then I would give them a list of 3 30 or 40 year old flaming liberals & tell them one of them will be the 5th circuit court nominee f no deal. I think that would be worth filling all of the Texas seats.

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      • Honestly I think that would be a good deal for Democrats — centrist by “normal” American standards = left-wing liberal by 5th circuit standards. Even if they were a little bit right of center they would be way to the left of the 5th circuit’s median judge.

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      • I tend to agree with you on Nathan, however if Thomas were to pass I think there would probably a push internally to nominate someone from The South for that seat and probably another black Justice. I know KBJ is from Miami but she’s more closely associated with DC.

        I think Nancy Abudu or Andre Mathis l might get some push if this were to happen. I hesitate to suggest it but Childs may be pushed as well depending on timing (for example if the seat were to open up in July 2024) if they needed a compromise candidate

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      • From a judges perspective, perhaps the most important reason to get Warnock re-elected is Manchin’s statement that he wouldn’t fill a late 2024 Supreme Court vacancy. I’m not sure how late Manchin would consider “late”, but he is up for re-election in ’24. The only way I see Manchin accepting a late ’24 SCOTUS nominee is if he is retiring.

        If Sinema (who’s also up in ’24) loses the Dem nomination she might sink a 2024 SCOTUS nominee as a revenge vote, though if Sinema is the Dem nominee I think she would fall in line since Arizona is a swing state & Sinema needs liberals to vote for her in order to win.

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  33. @Joe,
    I always enjoy your senate schedule/timeline forecast like the one you posted yesterday.

    Regarding Childs. Why do you think that Dems would need a compromise candidate in July 2024? Let’s game it out.

    If Dems only have 50 seats:
    Manchin and Collins will vote NO, per their precedent.
    Lisa Murkowski (if she wins) will be a procedural NO, but final confirmation YES. Again, assuming consistency.
    So far, that’s 50-50 on the final vote. This means there would be a chance to sink the July 2024 nomination on procedural grounds since, with Murkowski’s vote, the procedural NOs would be 51-49.
    Whereas Childs would probably get Graham’s vote.
    Hot damn, for once I guess agree with you.

    But, if it’s a 51 Dem senate, there’d be no need for a compromise candidate. Dems could lose Manchin, and not get Murkowski and still be able to move the nomination through cloture and confirm with VP.
    I really hope this will be the case because Childs shouldn’t be any closer to SCOTUS than she already is.

    Like

    • @Gavi

      I think you left one scenario out in a 50/50 senate with a SCOTUS vacancy after the start of The Thurmond Rule (I always hated that ridiculous precedent not to confirm judges in the last six months of a presidency). Manchin is up for reelection in 2024. If he loses, I think there’s a chance he would vote to confirm a justice in the lame duck. He really has nothing to lose as he is too old to run for anything else so I could see him saying it’s not fair only Republicans can confirm judges in the lame duck.

      As happy as I am with Biden’s judicial nominations I’m still mad he out Childs (And for that matter Pan) on the DC circuit. If Clyburn wanted to pick two Black woman for the circuit courts he could have at least told him Childs will get the 4th circuit & Benjamin will get the DC circuit. From all accounts Clyburn is closer to Benjamin anyway.

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      • No one talks about the Thurmond Rule because it wasn’t a real thing, just an excuse to refuse to return blue slips.

        That’s a good point about Manchin’s lame duck vote. But I don’t think he’d do it, even if he doesn’t plan on running for anything again.
        And if a vacancy is left open for that long, expect his GOP challenger to press him hard on whether he’ll vote to confirm in the lame duck, forcing him to further cement his position in hopes of winning.

        There is a related scenario I could see him voting yes in the lame duck: if Biden/Dem wins re-election and Dems somehow keep the senate. He could make the argument that the results would be the same.
        But again, it would suck for the seat to be left open for that long.
        I really hope that there’s a vacancy next year. Dear god please let there be!

        Like

      • Don’t you think it’s past time that you stop bashing Judge Childs & give it a rest ?!?! She’s serving on the DC Circuit because she’s well-qualified, is no political hack, & she deserves to be on that court! Seeing Justice Jackson deliver The Oath of Office to Judge Childs should tell you all you need to know.

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      • @Lori

        While I will admit there are some on this site that bashes judge Childs, I will repeat myself. In no way do I engage in bashing her. As I’ve said before she had a Masters in Law & they don’t just hand those out. I don’t even have a problem with the political patronage that others have with Clyburn pushing for her.

        My objection is the the court she was appointed to. A 55 year old moderate being appointed to the second highest court is the problem I have. That is what I am bashing, I could care less WHO the individual is. Had she been appointed to the 4th circuit I wouldn’t have been thrilled but at least would have said that was an ok pick. But not to the DC circuit. And the same goes for Florence Pan by the way in my opinion.

        Just wanted to make sure I was clear on my position. But you are correct, others have said Childs is unqualified & others have called her a hack which I completely disagree with.

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    • You’re probably right Gavi, I’m just being overly cautious and was only counting on 50 senators instead of 51. If Warnock wins next month that changes the calculus significantly.

      I think Manchin would be a no that late in the game on a confirmation, but as you pointed out we wouldn’t necessarily need him.

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    • a. There is ZERO chance that Graham provides the 50th vote to confirm a Biden nominee, even if it’s J. Michelle Childs. Graham is all about “owning the libs” and isn’t about to hand them a victory.

      b. I’m not sure how late is considered “late”. Ginsburg died in September 2020 but maybe July is different from September?

      c. Manchin might backtrack and vote yes on the nominee if he retires in 2024.

      d. Sinema might vote no as a revenge vote if defeated in the Dem primary but will likely fall in line if she wins the Dem primary since she needs liberals to vote for her.

      e. I think the votes of Collins, Murkowski, & Manchin (if he retires) are dependent on who the nominee is as well as the exact timing. I think Graham votes to confirm Childs if there’s 50 without him. I think Romney is also a wild card if he retires or gets defeated in the primary.

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  34. So if these nominees are returned to the president and he renominates them in January, do they start all over, or does it pick up where it left off?

    So for Brad Garcia for example, he is ready for a floor vote, and Rachel Bloomekatz would still need to be discharged?…..Would nominees have to go thru the Thurs SJC vote again ?

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    • The nominees that are returned have to be denominated by the president, usually January 3rd. They do not have to have another hearing in the SJC. The SJC just needs to vote them out. I’m not sure if they have to do the one week hold over bs again but I would assume yes so that’s two weeks & then they are fired to the floor.

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      • Dequan, you are correct, they have to do a one week hold again. I just double checked Charlotte Sweeney, who was deadlocked in December 2021. She went before committee again on Jan 13 and was held over before being deadlocked (again) on Jan 20. I assume it will work the same way for Abudu, RB, Ho, and Kato if they are renominated in January 2023.

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  35. Yet another article on Circuit Court judges that is only half right.
    Yes, under Trump, there WERE flips of Democratic held seats besides RBG’s on SCOTUS, like Terrance Evans of the 7th Circuit and several on the 2nd,3rd and 9th (due to deaths, senior status or retirements) but in many other cases, especially on the 11th Circuit, the “flips” that occurred weren’t flips at all.
    William Byrd Traxler, Frank Hull, Richard Tallman, Julie Carnes, Stanley Marcus were all conservative judges that Clinton and Obama had to nominate in order to get other liberal jurists through.
    IF Hillary had won in 2016 and Democrats had kept control of the Senate, none of them would have gone anywhere.
    Also, this is another article that ignores the fact Patrick Leahy’s clinging to norms that no longer existed is another reason McConnell was able to do so much damage.
    Obama could have had well over 60 Circuit court seats if not for Leahy clinging to the blue slip rule.
    Instead, McConnell got to fill those seats instead.
    At the end of the day, we’re not going to be able to undo all the damage done on the courts but we can go a long way towards blunting it and we have.
    Still a ways to go though.

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    • @Zack Jones

      So true. Another thing not talked about enough is the amount of deals Democrats make when Republicans are in the majority. I remember one day in the Trump administration McConell got 16 judges confirmed in order to go in recess early. That would never happen with Democrats in the majority. I doubt we will get 16 voice votes in all 4 years of Biden’s term. We’re at two so far. Hell, Democrats just went on recess without finishing the gay marriage amendment. Schumer said right before they recessed that it’s not a matter of IF but WHEN. They just had the entire month of October off. How about NOW & then you go in recess…smh

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    • This was essentially the point I made yesterday. Biden might be doing OK with judges but he probably won’t make as big an impact on the courts as Trump did.
      Your point, Zack, also shows that it’s risky business branding the nominee with the philosophy of the nominator. I think the article is still good, however. This is because while a Dem president may not have gotten to replace those “deal” judges, the fact that Trump did extend by decades the rule of conservatives. This is a huge part of the impact.
      Leahy should have been forced to own his error, but it’s mostly left out of the panegyric writeups of his tenure.

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      • Yup.
        Overall he was a great guy but Leahy dropped the ball on the courts, not just under Trump and Obama but W as well.
        No way on earth George W should have been allowed to get any more right wing hacks on the courts like Jennifer Elrod confirmed after Democrats had the Senate but he did.
        As to Schumer, it should be noted that under that deal he cut with McConnell, several liberal district court judges got confirmed too and it allowed members of the Democratic party time to go home and campaign, which saved some of them.
        As far as the past two years, as I’ve said before I give him a pass and a lot of credit for being able to get as many judges confirmed as he has despite not having an outright majority.
        I get the anger at not moving faster but I suspect if he had, Republicans would have forced a lot more discharge votes then they have so far.
        Should be noted back in 2001 when Jim Jeffords left the Republican party and joined the Democrats in the Senate, Republicans had a hard time with getting a lot of their judges confirmed and many of them weren’t processed again until 2003 when Republicans regained an outright majority.
        If Warnock can win the run on, I suspect we will see much quicker movement on judges.
        If we don’t, then we can let Schumer and the others have it.

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    • I care VERY much about the state courts as well as the federal judiciary. Governor Whitmer is having herself a fantastic few months. While I don’t know much about this nominee, I will trust the governors judgment here. And with her bright a 34 year old black woman, skies the limit for her.

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      • I know I wish there was an edit button too often after I press send… Lol

        This is exactly what Democrat governors need to be doing. Put young judges on the bench so they can be considered for elevation to the federal bench. The ABA will most likely rate an existing judge well qualified. Justin Walker is a perfect example. He was rated not qualified when Trump nominated him to the district court. Less than 9 months later when he elevated him to the second highest court in the land, all of a something he’s well qualified.

        Republicans have long understood this. I’m happy to see some Democrats finally taking note. Perhaps governor Whitmer can take a field trip to Albany, NY before governor Hakul screws up yet another NY Court of Appeals vacancy.

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