While the Georgia runoff still awaits, as of the writing of this article, Democrats have defied political history and maintained their razor-thin Senate majority past the midterm elections. With the loss of the House, Democrats are unlikely to pass transformative legislation in the next two years, freeing the Senate to prioritize nominations (where the House has no role). Court watchers will likely welcome this, as, despite historic successes with their razor-thin majority, the Biden Administration has little time to rest if it intends to fill a sizeable proportion of the 100+ lower court vacancies currently pending in the federal judiciary. Currently, there are sixteen circuit court vacancies and ninety-seven district court vacancies pending (including seats announced to be vacated but currently still full). In comparison, 56 judicial nominees are currently before the senate, twelve to circuit courts and 44 to district courts. As the Biden Administration and Senate Democrats turn to nominations and confirmations, it’s useful to look again at the current landscape.
As a reminder, the process for choosing circuit and district court nominees is fairly different. After the practice of requiring blue slips for appellate nominees was terminated during the Trump Administration, the Administration is under no obligation to secure pre-approval from home state senators before the nominee can receive a hearing. However, in practice, the Administration is still incentivized to consult with home state senators, which can slow down the nomination process, particularly in states with Republican senators.
Unlike circuit court vacancies, district court seats still require home state approval in order to be confirmed. This means that the ball is largely in the senators’ court in terms of naming nominees. This doesn’t mean that the Administration is completely absent from the process. It is still responsible for prodding senators, negotiating agreements, and choosing the right candidate. In fact, the Administration started right off the gate with an announcement that it expected recommendations for vacancies within 90 days of the announcement. This makes it all the more surprising the sheer number of district court seats that sit without nominees today.
This split is less surprising in states that only have Republican Senators, a group which includes thirty-five district court vacancies without nominees: six in Florida; five in Texas; three in Indiana and Louisiana; two each in Alabama, Missouri and Oklahoma; and one each in Alaska, Arkansas, Idaho, Kansas, Kentucky, Nebraska, North Carolina, South Carolina, South Dakota, Tennessee, Utah, and Wyoming. Many of the home state senators in these states have been fairly open about their unwillingness to work with the Administration on a nominee. However, others have been more willing to be involved, with Iowa senators, for example, recommending U.S. Magistrate Judge Stephen Locher, a young Democrat, to the bench (Locher was swiftly and unanimously confirmed). The lone district court nominee in a 2-Republican state is also the most recent, Scott Colom in Mississippi.
Similarly, in states with split delegations, the White House understandably needs to move with the support of home state Republican senators. It has had mixed luck in the states it has tried this with. Ohio Sen. Rob Portman returned blue slips for three nominees who were confirmed (one more remains pending). Similarly, the White House was able to reach a four nominee deal with Sen. Pat Toomey in Pennsylvania that included a nominee of his choice. In contrast, Sen. Ron Johnson has chosen to block a nominee that he previously signed off on.
Perhaps the most surprising in terms of vacancies without nominees are blue states or territories, where Democratic senators would presumably be incentivized to send recommendations quickly: yet, sixteen district court vacancies from blue states are nomineeless today, including four from California, three from New Jersey, two each from Connecticut, Illinois, and Michigan, and one each from Colorado, Maryland, and New York. A summary of this landscape follows:
D.C. Circuit – 1 vacancy out of 11 judgeships (one nominee pending)
The so-called “second highest court in the land”, the D.C. Circuit was the site of Biden’s first appointee when Jackson was confirmed to the court last June, a mere two months after her nomination. However, since that haste, a second vacancy languished for more than a year, taking nearly nine months after Judge David Tatel announced his departure from active status before Judge Michelle Childs was nominated, and taking Childs eight months to be confirmed. Jackson’s elevation to the Supreme Court reopened another vacancy, and the White House moved more quickly, elevating U.S. District Judge Florence Pan (confirmed in September). A fourth nominee, Brad Garcia remains pending on the Senate floor to fill the last remaining vacancy on the court, vacated by Judge Judith Ann Wilson Rogers.
The only district court that reports to the D.C. Circuit is the U.S. District Court for the District of Columbia. The 15-judgeship court has one current vacancy, from Pan’s elevation, and one future vacancy, with Judge Colleen Kollar-Kotelly taking senior status upon confirmation of a successor. Nominees are pending for both vacancies with Ana Reyes currently awaiting a floor vote and Judge Todd Edelman having received a Judiciary Committee hearing last week.
First Circuit – 2 vacancies out of 6 judgeships (one nominee pending)
The smallest court of appeals in the country was also the sole geographically-based court not to see a single Trump appointment. Biden has already named Judge Gustavo Gelpi and Public Defender Lara Montecalvo to the court. Additionally, reproductive rights attorney Julie Rikelman is pending a vote before the Senate Judiciary Committee to replace Judge Sandra Lynch. The final seat, based in New Hampshire, was vacated by Judge Jeffrey Howard nearly nine months ago, and lacks a nominee. Given that New Hampshire has two Democratic senators, the lack of a nominee is puzzling.
The district courts covered by the First Circuit have five pending judicial vacancies, all of which have nominees. The District of Massachusetts has three current vacancies and three nominees pending, two of whom already have hearings.
The District Court for the District of Puerto Rico is down two judges, with nominees to fill the seats already on the Senate floor. A final Senate vote on Judge Camille Velez-Rive is expected next week, which should leave Judge Gina Mendez-Miro as the sole pending P.R. nominee.
Second Circuit – 1 vacancy out of 13 judgeships (one nominee pending)
Having replaced five left-leaning judges on the Second Circuit, the Biden Administration has already had a significant impact on the court. However, Justice Maria Araujo Kahn, nominated to replace 81-year-old conservative Jose Cabranes, remains pending in the Senate Judiciary Committee and has a long line of nominees ahead of her to be confirmed.
Connecticut, which saw three Biden appointees hit the bench last year, is one of the worse blue states when it comes to nomineeless vacancies, with two of the eight active judgeships vacant and no nominees on the horizon.
Meanwhile, the district courts in New York are also shortstaffed, with nine vacancies among them. The hardest hit is the Eastern District of New York, which has four vacancies out of sixteen judgeships, The bright side for the White House is that eight of the nine vacancies have nominees pending. The down side is that only three of the nominees are currently on the Senate floor (with one, Anne Nardacci, expected to be confirmed next week). Two of the longer pending nominees, Southern District of New York picks Dale Ho and Jessica Clarke, are currently bottled up in Committee, pending a discharge vote. Three more await hearings.
Third Circuit – 2 vacancies out of 14 judgeships (two nominees pending)
This moderate court currently has one Biden nominee confirmed (Arianna Freeman nominated to replace Judge Theodore McKee) but Judges Thomas Ambro and Brooks Smith don’t have replacements yet although nominees are pending on the Senate floor for both seats and should, if prioritized, be confirmed easily.
Two of the three states covered by the Third Circuit have judicial vacancies. The biggest number are in Pennsylvania, which has seven vacancies, four of which have nominees, the aforementioned four nominee deal. With Democrat John Fetterman replacing Toomey, it is likely that new recommendations will be sent out for the remaining vacancies and they will likely not be confirmed in the next few months.
The District of New Jersey, vacancy-ridden when the Biden Administration came to office, is now down to three seats left to fill. However, none of the three vacancies have nominees pending even though the oldest dates back seven months. With control of the Senate solidified, it is likely that New Jersey will see new district court nominees shortly.
Fourth Circuit – 2 vacancies out of 15 judgeships (one nominee pending)
The Fourth Circuit currently has vacancies out of South Carolina and Maryland. Judge DeAndrea Benjamin, nominated to the South Carolina seat, has home state senator support and will likely be confirmed easily in the new Congress. However, the bigger surprise is that a Maryland vacancy announced last December still lacks a nominee. Maryland’s Democratic senators have a mixed record in the speed of recommendations and a district court vacancy in the state announced last year also lacks a nominee.
In other states, Virginia has two nominees pending before the Senate Judiciary Committee for a final vote. Their confirmations would fill all the remaining vacancies on the state’s district courts.
Additional vacancies exist in North Carolina and South Carolina. Both North Carolina and South Carolina have two Republican senators, so any nominee will largely depend on the White House’s negotiations.
Fifth Circuit – 2 vacancies out of 17 judgeships (one nominees pending)
The ultra-conservative Fifth Circuit became even more so when the youngest Democrat on the Fifth Circuit, Judge Gregg Costa, unexpectedly announced his resignation from the bench. Nine months after Costa’s announcement, there is still no nominee pending to replace him, although Judge Dana Douglas, nominated to replace Octogenarian liberal James Dennis, is poised for confirmation after bipartisan support in the Judiciary Committee.
On the district court level, both Louisiana and Texas have multiple district court vacancies and no hint of any nominee. Mississippi, on the other hand, despite having only one vacancy, does have a nominee: Scott Colom. While Mississippi senators have not yet announced support for Colom, they have not expressed opposition either, suggesting that Colom might be, surprisingly, on track for confirmation.
Sixth Circuit – 1 vacancies out of 16 judgeships (one nominee pending)
Of the three vacancies on the Sixth Circuit that opened in the Biden Administration, only the Ohio based seat of Judge R. Guy Cole remains open. Rachel Bloomekatz, nominated to replace Cole, is awaiting a discharge vote in the Judiciary Committee. It remains to be seen if Sen. Sherrod Brown will push for Bloomekatz to receive a final Senate vote by the end of the year.
On the district court level, each of the four states under the Sixth Circuit have vacancies pending. After the White House’s proposal to nominate conservative lawyer Chad Meredith to the Eastern District of Kentucky fell through, there remains no nominee to replace Judge Karen Caldwell, although Caldwell has reaffirmed that she will only leave the bench if a conservative is appointed to replace her.
The Eastern District of Michigan has four pending vacancies and two nominees (one on the Senate floor). Michigan’s Democratic senators have been relatively slow in naming nominees, so it’s unclear when nominees will hit the Senate for the remaining vacancies.
The Southern District of Ohio has a single vacancy, with a nominee, Jeffery Hopkins, pending a Judiciary Committee vote. With Sen. Rob Portman set to be replaced by J.D. Vance, it is possible that Democrats will prioritize Hopkins in an effort to fill the seat before Vance’s input is needed.
Finally, a vacancy is pending on the Western District of Tennessee. The White House and Tennessee Senators battled over the Sixth Circuit nomination of Andre Mathis, and while the White House ultimately won confirmation, other seats could become casualties. Nonetheless, the White House has put forward U.S. Attorney nominees with senatorial support in the state, suggesting that some common ground can be reached to fill the vacancy.
Seventh Circuit – 2 vacancies out of 11 judgeships (one nominee pending)
In addition to naming Judge Candace Jackson-Akiwumi and Judge John Lee to the Seventh Circuit, Biden has the chance to add two more judges to the court. Judge Doris Pryor, currently pending on the senate floor, is likely to be confirmed before the end of the year. However, the second vacancy, opened by Judge Michael Kanne’s death, lacks a nominee. Given the support Indiana’s Republican Senators gave to Pryor, the White House is likely to grant them deference in turn in cchoosing a nominee to replace Kanne.
On the district court level, Illinois nominees Lindsay Jenkins and Colleen Lawless are pending in the Senate Judiciary Committee. The Northern District of Illinois has two more vacancies that are likely to get nominees shortly.
Meanwhile, three vacancies are pending in Indiana without nominees. It is likely that the White House may lump these nominees into a package with the Kanne seat to allow for all the seats to be filled at once.
Wisconsin is likely a sign of frustration for the White House as Senator Ron Johnson has now blocked both a federal judge nominee and a U.S. Attorney nominee that he previously signed off on. With Johnson’s narrow re-election, it is likely that the nomination of Judge William Pocan is dead, and the White House and senators will have to renegotiate a new nominee to replace Judge William Griesbach.
Eighth Circuit – 0 vacancies out of 11 judgeships
While the Eighth Circuit remains the sole court of appeals not to see a vacancy open under Biden, there are a number of vacancies open in the district courts covered under the Circuit, including one each in Arkansas, Minnesota, Nebraska, and South Dakota, and two pending in Missouri. Of these, only the seat in Minnesota has a nominee (Jerry Blackwell, who is awaiting a floor vote). Of the remaining vacancies, the White House has failed to nominate any U.S. Attorneys in those states, boding poorly for the likelihood of any agreement on judicial nominees.
Ninth Circuit – 1 vacancies out of 29 judgeships (one nominee pending)
Compared to other courts of appeals, the White House has had comparative success in confirming judges to the Ninth Circuit, naming six, with a seventh pending a judiciary committee vote. The district courts covered by the Ninth Circuit were equally successful for the White House, which has already confirmed 19 judges to (compared 14 judges that the Trump Administration named over four years).
An additional 13 nominees are currently pending to fill 19 vacancies, eight in California, four in Washington, and one in Oregon. Of the seats needing nominees, four are in California (two on the Central District and two on the Southern District). Another two are in Alaska and Idaho respectively, which have two Republican senators apiece.
Tenth Circuit – 1 vacancy out of 12 judgeships (one nominee pending)
The Kansas seat vacated by Judge Mary Briscoe is the oldest appellate vacancy in the country. Judge Briscoe announced her move to senior status in January 2021, and a nominee, Jabari Wamble, was announced in August 2022. Wamble has yet to have a Committee hearing but could, in theory, be confirmed early next year.
Among the states covered by the Tenth Circuit, there are eight district court vacancies, out of which two have nominees. Five of the six nomineeless vacancies are in states with two Republican senators, with particularly long-pending vacancies in Kansas, Oklahoma, and Utah, in particular. Given the nomination of Wamble in Kansas and the successful confirmation of Trina Higgins to be U.S. Attorney in Utah, it is possible that the White House is able to reach an agreement with senators to fill the vacancies shortly.
Eleventh Circuit – 1 vacancy out of 12 judgeships (one nominee pending)
Judge Beverly Martin announced her retirement from the Eleventh Circuit in July, ultimately leaving the court in late September. The Biden Administration nominated civil rights attorney Nancy Abudu to the court in December, but then unwittingly delayed Abudu’s hearing by quixotically claiming that she was under Supreme Court consideration. While no serious observer believed that Abudu would be nominated to the Supreme Court, her consideration ensured that Abudu’s nomination would not be processed until a nominee was named. Furthermore, Abudu’s nomination proved deeply controversial and deadlocked in Committee, forcing a discharge vote that has yet to occur. Given the risk to Abudu’s nomination if Warnock were to lose, it is likely that Democrats would seek to prioritize her nomination if the runoff went poorly.
On the district court level, Alabama has two pending vacancies, one from the elevation of Judge Andrew Brasher in the Trump Administration, and the second from Judge Abdul Kallon’s untimely resignation. Both lack nominees as outgoing Republican senator Richard Shelby expressed his opposition to any left-of-center nominee. With Shelby’s retirement and the election of Katie Britt to the Senate, it remains to be seen if a package can be reached (it’s possible that Alabama senators may demand the renomination of Trump nominee Edmund LaCour.
Meanwhile, Florida has more nominee-less vacancies than any other state: six. Both Senator Marco Rubio and Florida’s Democratic House delegation recommended attorney Detra Shaw-Wilder (a Democrat) to the Southern District of Florida last year, but no nominee has hit the Senate yet. The recent announcements of U.S. Attorney nominees to two of the three open positions in Florida, however, could presage a thaw in negotiations over the state’s appointments.
Conclusion
On one side, one could argue that the Senate has plenty of time to fill these vacancies, as well as more that will inevitably open over the next two years. After all, despite a packed legislative calendar, the Senate has already confirmed eighty-five nominees (and will likely confirm more before the end of the Congress). However, it’s also important to recognize the fragility of the Democrat’s narrow majority. Just because 50 members held together over the last two years is no guarantee that it will last another two. In a sense, winning the Georgia runoff and securing a 51st seat will be all the more important for Democrats if they seek to rival Trump’s judicial legacy.
The Vetting Room 
Has anyone been following the early vote stats in Georgia? I’ve been monitoring tweets from Gabriel Sterling, of the SoS’s office. Warnock is not running away with this. If you assume that early voting should give Warnock the advantage, that’s not happening so far. Looking at the rural Trump counties, early voting so far is a blowout. Take Greene County, a Trump +24:
While the big three counties may still sway the election, having a nearly 10% turnout of registered voters in a single day of EARLY voting in a ruby red county is very good news for Walker. Will it be near 10% every day of early voting? Does that mean by election day turn out of registered voters could be as high as 90% in this county? Could Cobb/Fulton/Gwinnett overcome these high numbers?
Would god inflict a Senator Herschel Walker on the country?
Then again, he inflicted a Senator Tommy Tuberville, who is just an Alabama version, a white Walker (ha ha, see what I did there? #GoT!).
@Ethan, this is your turf. Do you have any insights?
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There is this as well.
No telling who showed up to vote for Warnock in these areas.
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@Gavi. Never got an e-mail notification for this post. I waited almost 2 hours in line to vote early today. I doubt Walker will win. Especially since Christopher Bouzy says that. Polls are junk. On another note, I know several people who know Gabriel Sterling personally.
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I saw where Black turnout is at like 38% of total turnout right now, which is significantly higher than in November or in 2020/21. I have to think that would bode well.
Walker is only barely campaigning right now and Warnock is doing 3-4 events per day with huge events with Dave Matthews and Obama this week.
Ultimately I feel good about it, but people will need to show up next Tuesday and hope Kemp/Warnock voters don’t revert to Walker (or stay home).
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In addition to everything already said, they also are saying young people are turning out apparently in record numbers as well. But no time to rest on our laurels. Come through strong Georgia & give democracy a shot in the arm one more time & close out senator Warnock sixth election in less than three years.
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What the f*ck. No circuit court nominee, no Jabari Wamble & only 5 judges in tomorrow’s hearing? This is ridiculous.
(https://www.judiciary.senate.gov/meetings/11/30/2022/nominations)
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Definitely strange. I figured Wamble would’ve been on there for sure with 5 district nominees in panel two. I hope there’s nothing wrong with his nomination.
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What’s equally as bad about no Wamble tomorrow is only 5 judicial nominees. I’m sure the Assistant Attorney General, Office Of Justice Programs is an important position but couldn’t they have just thrown him in some other hearing. These really need to be reserved for judges.
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SJC nominee list for tomorrow is up. No circuit nominee. I wonder if Wamble wasn’t available this week, or if there’s some other kind of hold up. Hope not.
District nominees are Grey, Kobick, Lin, Reyes and Simmons.
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A note on GA runoff turnout:
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Two new US Attorneys announced including a red state. Perhaps judges are on the way this week too.
(https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/29/president-biden-announces-two-new-nominees-to-serve-as-u-s-attorneys/)
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One US attorney is for Kansas where there’s been a district court vacancy for some time. Would be interesting if they’ve paired the two nominees in a deal with Moran/Marshall. Maybe even tied in with supporting Wamble.
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The fact that there is no jabari wamble for nomination hearing is a disgrace and shame on schumer and durbin, i just hope the GOP are not up to their bad faith tactics and shenanigans to stall his nomination.
In a sane society with a strong democratic president and a majority leader there would have been nominations already out for the vacancy on the 5th circuit, the fact that biden is even contemplating dealing with a vile person like cruz, who should have absolutely no impact or sway in any judicial nominee is sickening, ram through a left wing activist like ho and give them a taste of their own medicine.
Its capitulation after capitulation, if democrats did not hold the senate this would have been the biggest dereliction and shame of the biden presidency leaving so many circuit courts without a nominee.
This is one of the reasons i see the house being GOP a good thing, no excuses. Jabari should have been up for the hearing on wednesday this is a disgrace and a huge disappointment, hoping we can get 2/3 circuit nominees at the minimum confirmed before next senate congress
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@aangren
I totally agree. If this is the first shot across the bow for how Democrats will handle the judiciary the next two years, we are not off to a good start. We all know Wamble wouldn’t have been confirmed before the end of the yar anyway but at least they could have put their foot on the gas & put him in tomorrow’s hearing.
And that’s on top the 87 days & counting with only one new judicial nominee. But hey, I guess look at the bright side. At least the Assistant Attorney General, Office Of Justice Programs is getting a hearing tomorrow.
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I guess Durbin knew Wamble would not be in tomorrow’s SJC hearing since last week. When they posted the meeting last week Tuesday, I thought it was odd that the start time was 10:30am instead of 10am like it normally is. Now I see why they are starting 30 minutes late tomorrow.
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@aangren, most of these nominees won’t even get a vote this year.
There’s too many important bills the senate needs to pass while Dem control the House including NDAA, budget, debt ceiling, election reform, and there’s a bipartisan pregnant women’s employee rights bill. Today the Respect For Marriage bill will be approved which is a big relief for equality in red states.
Senate might focus on judges in the last one or two weeks, they’ll maybe approve the district nominees and a few circuit court ones.
I want them all confirmed asap too but they’re going to run out of blue and purple state judges by the summer so no need to rush when we can get important bills passed.
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So are any of the District Court nominees Wed. likely to draw any fierce opposition from GOP ?
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I wonder if Moran/Marshall indicated they weren’t going to return blue slips and thus Durbin decided to delay Wamble’s hearing until the 15th to see if Warnock wins?
They can have a hearing then process his vote down the line without having to worry about him being deadlocked in committee.
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Looking at the SJC questionnaires for tomorrow’s nominees, here’s some quick takes;
1. Rita F. Lin initially applied for a9th circuit court vacancy.
2. Both California nominees initially applied early in 2021 & took well over a year to get an interview with The White House Counsel’s Office. I absolutely hate that senators Feinstein & Padilla have separate judicial screening committees.
3. Jonathan J.C. Grey seems to be more progressive than I had originally read. He has a pretty good progressive background.
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I honestly do not know what to make of the exclusion of Wamble.
Maybe it’s a blue slip issue that Durbin wants to off hold dealing with until next year?
Maybe the nominee is gravely ill?
I got nothing else.
It can’t be that he won’t be confirmed this year. Nominations sent back to the WH sine die do not need to have rehearing. Just a new vote.
Maybe this has something to do with the fact that the panel of nominees got released so late? The day before as opposed to the week before?
I really hope Durbin can provide some explanation tomorrow.
Remember when Dems won the senate a few weeks ago and everyone was like, yay, judges, judges, judges. It hasn’t worked out quite that way, has it?
I saw the Thanksgiving “Biden accomplishments” talking points list that the WH released last week. Guess what wasn’t on it? Anything about judges/KBJ. Unfortunately, the WH doesn’t think voters care about judges. Instead of elevating the issue as an accomplishment that they can sell to their base as wins, the Biden Admin don’t want to lead on the matter.
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Both senators Sasse & Warnock are missing today’s votes. Hopefully Sasse misses many more to help even out the senate to 49-49 until Warnock is back.
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Sasse’s wife has health issues so that is why he likely isn’t there.
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On related news, sounds like progressive groups have settled on three names for the Court of Appeals.
Let’s Hochul picks from them and actually starts the process of turning our top state court into one that is actually Democratic.
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Honestly the list should be two names. Edwina Richardson-Mendelson is good but entirely too old. It really should be between Corey Stoughton or Abbe Gluck. This is why I really was hoping they got the list to her before the election. She would have definitely had picked a progressive if this was before election day with Zeldin closing in.
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I’m rooting for Stoughton myself.
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Corey Stoughton is the best out of the seven. I still say the commission itself needs to be changed but for now she is good. However, I can understand the temptation to nominate Abbe Gluck for diversity reasons as well.
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Glad to see the marriage bill pass tonight. Back to the House for final passage.
And very glad to be back to confirming judges tomorrow. Cloture votes for Velez-Rive and Nardacci scheduled for morning, and confirmations in the afternoon. Not sure how timing on Pryor and Blackwell will follow.
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Definitely good to see the gay marriage bill passed & out tue way. Let’s get some movement on judges now. They will probably need another two weeks to take care of legislation so that leaves 5 to 7 days left for judges counting tomorrow. It would be great if Schumer would just work a Friday or two while Dems still have the House.
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I’ve been trying to figure out the lazy Friday policy and if it’s a longstanding senate thing or some deal they made with Republicans for a slightly faster approval process for nominees and legislation in return for a 4 day work week.
We give the senate dems a lot of flak but they’ve actually accomplished a shocking amount of legislation while approving more judges than any other president in probably 20 years with a 50/50 split. So it can’t be blatant incompetence or laziness.
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I agree Mike, they’ve been quite productive. It’s hard to complain about too much.
I’m guessing Blackwell and Pryor will probably get votes on Thursday. It’ll be interesting to see what the priorities are for next week, but there’s still a ton of legislation that Biden is pushing for. I still before it’s all said and done I think Schumer will find a way to get 4 more circuit judges confirmed (matching Trumps 30) plus most of the district judges who are currently waiting floor votes.
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Let me name a possible future Federal judge in California. Claudia Alvarez was elected to Orange County Superior Court this November. She’s an immigrant from Mexico and an ADA. Someone to keep an eye on.
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IMO Mike, it was something along those lines.
All things considered, Republicans have been a lot less horrible on allowing judges to get votes out of committee then they could have been and I suspect Schumer and company playing nice was part of that.
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Now that there’s another (future) vacancy on the Delaware Supreme Court, let me reiterate my gross disapproval of this ridiculous near-partisan balance rule.
In such a blue state, I really hope the Rs that are appointed are wholly chosen by the governor (hopefully always RINOs) and not from a state GOP party or GOP leaders’ list. What a shame it would be if John Carney is forced to replace Tamika Montgomery-Reeves with a right winger.
https://www.delawarepublic.org/politics-government/2022-11-29/delaware-supreme-court-justice-james-vaughn-announces-retirement
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Delaware as well as New Jersey have that idiotic partisan balance rule. So does the Court of International Trade. So governor Carney, governor Murphy & President Bide will be appointing Republicans to those courts respectively. I can’t think of any Republican states that have that rule.
As for the other conversation, I truly hope the reason we have a Senate 3 day work week is because it in exchange for Republicans not forcing the full post cloture times on judicial nominees. I too would hate to think it was just because Schumer & the Democrats were lazy. I really didn’t keep track until around August but I will say the average circuit court nominee time used post cloture averaged somewhere around 18 hours which is well under the 30 hours that could have been forced.
I too would like to see Biden pass Trump’s 2 year record on circuit court judges as well. But as I’ve said before the real number I care about is 14 which is the additional circuit court judges we would need to vacate their seats & Biden to fill. That would put Biden past Trump’s 54 circuit court judges.
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Would you approve of such a rule if it was in a red state? With how polarizing the courts are these days, I think rules such as these can be tremendous to bring in more sanity to state and federal courts.
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No, I would not approve of these in red states, no more for the fact that it would NEVER happen. Also, elections matter. Instead of crying about the 30-something ultra conservatives are putting on state high courts, I’d advocate going out and winning elections and doing the same.
I’m not of your long-gone era of thinking that if only we had more norms, everybody would behave. I am not naive, so I understand that politics is power. You can either use that power toward what you interrupt to be your mandate, or unilaterally surrender it for a false promise of parity.
Now, if red staters want to implement such a “norm” do you think I would stop them? But don’t hold your breath, because they aren’t 1950s Democrats.
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No I wouldn’t want to see the partisan split rule at all even in red states. I believe when the people elect somebody, they should have the ability to appoint like minded judges. When I moved to Florida 22 years ago every Florida SCOTUS justice was a Democrat. Republicans have won the governorship ever since I moved here & now every Justice is a Republican appointee. It sucks but I can’t imagine 3 of the 7 justices still being Democrats just because of some rule. We just need to win elections.
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I don’t think winning elections by tiny margins (such as several of the recent gubernatorial elections in FL and other current swing states) constitute a ‘mandate’, as Republicans and many Democrats think. The fact is voters in pretty much every election are not thinking about the judiciary at all, so why should state judges be chosen by such a antiquated system that gives even the smallest idea this is the case and is why the partisan balance of the courts should be completely off balance with the voters of said state? The voters for the minority party still deserve, even when their chosen party or candidate didn’t win, voices on the courts that represent their alternative yet still valid views.
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I’m sorry but that’s such nonsense. Does Frank, a sole commentor on a site, decide what constitute an electoral mandate? Does he get to determine what’s on voters’ minds when they cast their votes? Voters are intelligent to know that there are certain powers that go with certain offices. And so, voting for certain candidates for specific reasons doesn’t mean that once elected, those candidates aren’t going to have to perform certain other unprioritized functions.
You talk about small margins in Florida, can you also address Dequan’s broader point about there not being a Dem governor there for a while now? If Republicans consistently win, even by small margins, don’t they deserve to move the state in the direction that THEY, the elected officials, think the voters elected them to move it?
How infirmed is your position now that the current governor won with nearly 20%? Does he NOW get to work his will?
Just to throw one more shovel of dirt: by your logic, the 50-50 Dem senate shouldn’t be able to do anything, since 50 out of 100 isn’t even a majority. So everything that passed, and every nominee confirmed, with only Dem votes is illegitimate.
Do you see how unsustainable the tension in your argument is?
Moving away from the land of arbitrariness and capriciousness, the only *objective* metric we have is who wins an election, not what some random person thinks is the right amount of percentage.
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We have an official recommendation from the South Dakota Democrat Party for the vacancy district court seat. Let’s see what the two Republican senators have to say about it. She’s 58 years old & has been a magistrate judge for many years so perhaps she will be an acceptable choice.
(https://www.argusleader.com/story/news/nation/2022/11/29/south-dakota-democrats-recommend-duffy-as-federal-judge/69686063007/)
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Veronica Duffy has been a Magistrate Judge since 2007. So her qualifications are in order. I haven’t found out much else. If her rulings are routine and her speeches and writings don’t generate controversy, Republicans may let it go without a fight.
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I agree, hitting 30 circuit judges isn’t really that big of a deal in the grand scheme, but the admin loves to compare themselves to Trump so I can see them aiming to at least match that (and exceed in district confirmations). Their messaging following the end of 2021 was along those lines as well.
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From what I’ve seen, Veronica Duffy appears to be very mainstream and at 58, isn’t in danger of being elevated to the 8th Circuit or beyond so I suspect Thune and Rounds might not put up a fight here, especially given the fact this seat needs to be filled.
Same with Idaho, which is a judicial emergency at this point.
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With only three district court seats, I too think they will play ball with a 58 year old moderate. If I remember correctly, I saw four woman recommended for Idaho. I remember one was in her 60’s & none seemed to be particularly liberal so I expect to see a nominee agreed upon there by February too.
On another note I’m still upset at no Wamble at tomorrow’s SJC hearing. If I didn’t upload their pictures on their Wikipedia pages, I would boycott watching tomorrow… Lol
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Interesting point about Idaho. I was certain that ex-U.S. Attorney Wendy Olson would be chosen. The Senators who supported her back then are still Senators and she’s a familiar face.
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I suspect there was an issue with blue slips (Marshall is a huge jerk) and that is why they’re waiting until the 15h to see how the GA Senate race goes.
That way they can see whether they would have to set up a discharge vote down the line or be able to send him out of committee outright early next year.
I suspect we will be seeing some judicial nominees next week as well, hopefully for the 1st and 4th Circuit as well as the remaining vacancies in CA (all of which are judicial emergencies.)
Let us also hope we see some retirements of Clinton/Obama judges who can take senior status and possibly Republican jurists as well so Biden can replace them.
If that happens, then Biden can match Trump’s total for Circuit court judges.
As for SCOTUS, not likely to see any flips there but you never know what health issues any justice is dealing with behind the scenes.
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@Dequan,
Do you like irony? In Ohio, two rightist operatives, former lobbyist Jack Burkman and his sidekick Jacob Wohl, were found guilty in Ohio of telecommunications fraud for robocalls discouraging people from voting. They are required to spend 500 hours registering people to vote.
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Haaaaaaaa… I love the irony but I would rather see them go to jail. At least two of the five Oath Keepers were found guilty of sedition. I hope they get as close to the 20 years max they can get.
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Both of these are vacancies that need to be filled, especially the one in the Northern District that has been open since 2016!
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His nomination was dead anyway due to Judge Hurd taking back his senior status but this likely would have been an issue even if he hadn’t and likely ensures he won’t be getting a nomination for anything in the future any time soon.
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I agree that his nomination was dead anyways because Hurd’s withdrawal means no vacancy, but this is just typical litigation stuff that’s unlikely to actually sink anyone’s nomination – it’s only an OSC and not even an actual sanction, and his response seems to it seems to be reasonable. He may very well not be sanctioned in the end, depending on how much of a hard-ass the judge is.
I also wonder if Wamble isn’t up yet because there’s a blue-slip issue with one of the KS senators. I’m really hoping Warnock wins next week so Dems can tell red-state senators to take a hike (and I hope Durbin has the backbone to do so). I can understand why consultation is necessary in a 50-50 Senate, but consulting with the likes of Cruz for the CA5 seat is a waste of everyone’s time.
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Forgot to add the nominee I was talking about was Jorge Alberto Rodriguez in the Northern District of NY.
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No matter what happens with Jorge Alberto Rodriguez, judge Hurd is still a shameless judge that I wish could be removed. More importantly I wish legislation could be passed so that once a judge announces retirement, they can’t take it back unless there is a change in administration & a replacement hasn’t been confirmed & commission signed before then.
On another note, the SJC hearing started promptly at 10:30am. Durbin mistakenly skipped over senator Grassley for senator Warren to speak but it was all in good humor & Warren deferred back to Grassley.
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Hi everyone! I am new here (just found this website recently) but I do track Biden’s Judicial picks since he is inaugurated last year.
Any thoughts on who the president might pick on Maryland’s 4th circuit vacancy? Is it possible that he picks someone from the district court?
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Hi Charles, welcome.
We have talked in depth about the 4th circuit vacancy in past pages in this blog. I’ll give you the two names I would like to see the most. Deepak Gupta since he didn’t get one of the DC circuit seats or Ajmel Quereshi who just became a magistrate judge earlier this year. Biden has already nominated two magistrate judges to circuit court seats (Pryor & Douglas).
Others have mentioned Tejinder Singh, Brendan Hurson & some of the district court judges. I am an advocate for more black men (As well as Hispanics & AAPI) Biden picks but I don’t want to see George Hazel elevated as he seems to be too moderate.
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My synopsis of today’s SJC hearing;
1. Senator Padilla revealed that Rita Lin has a hearing disability. She would be Biden’s second nominee with a disclosed disability.
2. Senator Feinstein asked three separate times for one of the nominees to speak up louder.
3. Senator Kennedy complained about only having 50 seconds to ask questions & hear answers from each nominee.
4. Senator Kennedy questioned Rita Lin on a statement she made when she was in college about Christianity. He grilled James Simmons on his lack of experience & then proceeded to give him a law review test.
5. Senator Blackburn grilled judge Reyes on releasing criminals.
6. Several GOP senators grilled Julia E. Kobick on second amendment rights.
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I thought Simmons handled the questions he received from Kennedy much better than Matthew S. Petersen during the Trump administration, was asked a similar line of questions to and had no good answers.
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Definitely Frank. Simmons was able to answer most of the questions & even the ones he could not, he was able to explain he doesn’t handle those types of cases but is looking forward to learning more about them if confirmed.
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Are you also surprised that James Simmons got grilled? He seems like a mainstream jurist to me. I noted in his thread that he’s given some stern sentences to criminals.
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I was surprised Simmons was Kennedy’s target but that’s what happens when you don’t have a circuit court nominee up. They have more time to prepare to grill the district courts instead.
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The fact is Simmons hasn’t done many of the types of tasks that he will be doing routinely as a district court judge, which is what Kennedy was getting at (and is a fair line of questioning, IMO). As Dequan noted, the lack of any circuit court nominee makes it so that the district court nominees face the increased scrutiny. This happened earlier this year to a greater extant as Nina Morrison was on a panel with only herself, 2 other uncontroversial district court nominees, and the nominee for a executive director position, there was no circuit court panel, and as a result she saw a intense hearing from the Senate Republicans.
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Thanks Dequan. Frankly, I agree with Sen. Kennedy that time given for actual questions and answers is far too short. There’s several reasons for this though (too many members, too many speeches, too few hearings) that really have nothing to do with Durbin or the Dems.
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The SJC definitely should reduce its membership by at least two. I’d like to see them use this opportunity not to replace Sasse & Leahy. Unfortunately, it’s hard to put the toothpaste back in the tube so to expect them to reduce members is unlikely.
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Yea..I could easily see where IF the senate stayed 50/50 (though it’s looking better and better for Warnock) there will be deadlocked votes coming out of this.
Let’s hope it gets to 51 so that doesn’t happen.
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Graham will typically still vote any nominee out of committee, provided they have home state support and aren’t very vocal activists/commentators. Someone please check my math but of the 76 District nominees who have gotten SJC votes I think Graham has voted yes on all but 5 of them. He’s a little tougher on Appellate nominees, but even then I think it’s 25/32 (Lee, Sung, Thomas, Mathis, Freeman, Abudu, Bloomekatz). He’s done us a lot of favors in that regard.
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In addition to the two confirmation votes today there’s two cloture votes tomorrow. Let’s hope Schumer sends more cloture motions to the desk today or tomorrow so they can be considered on Tuesday. There is a lot of legislation that needs to get taken care of before the end of the year so I know at some point the judges will stop being confirmed for a bit.
I really hope the runoff is called rather quickly Tuesday night or Wednesday so Warnock can get back to the senate. With Sasse out for either his wife’s illness or just because he’s working on getting started with his upcoming UF job, perhaps we can get some of the heavy hitters confirmed before the end of the year.
(https://twitter.com/SenatePress/status/1598026764592287756?cxt=HHwWmMC40YW4qq0sAAAA)
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I think Georgia should be called by around Midnight Tuesday if November was any indication.
I think per state law final results, barring ballot cures and military votes, must be posted to the SOS by 5pm Wednesday.
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I’m on state supreme court duty this week…
So far, this will be the premiere election next year:
https://www.yahoo.com/news/jennifer-dorow-waukesha-christmas-parade-185229094.html
This Wisconsin Supreme Court race will determine if Wisconsin slips further away from being a democracy, with its infamous gerrymandering of state legislature and congressional districts.
While I don’t know much about the candidates, Jennifer Dorow, the Scott Walker conservative, looks like she’ll be a formidable candidate. She’s from one of the ultra-conversative WOW counties and she was the judge in that widely covered trial of Darrell Brooks (the Christmas parade attacker), sentencing him to over 700 years. The Ron Jon tough-on-crime 2022 playbook might work well for her.
(Parenthetically: former Justice Daniel Kelly was beaten by a liberal before so naturally I want him to be the nominee again)
Of the two liberal candidates so far, Judge Janet Protasiewicz seems too old. But this is an elected office, so maybe that’s what it’ll take for a win. And I would be more than OK with that.
And then there is Judge Everett Mitchell, a young black man. I don’t know his position/record on crime. Hopefully, we won’t see a Johnson-Barnes 2022 redux next April. If Mitchell falls short (in the primary) he could be a good candidate for a 7th circuit vacancy (no way would Ron Jon return a blue slip for a district court nomination).
(Slightly related, I glanced data that showed that in the 2022 midterm, the black vote was the lowest since 2006. This could also explain Barnes’ 1-point loss.)
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@Gavi
I too saw that statistic about Black turnout in the midterms as well. Disappointing to say the least. I’m sure that hurt in Wisconsin, North Carolina & probably numerous House races too.
I’m not as well versed when it comes to the state courts, but Everett Mitchell sounds good for a 7th circuit seat should Diane S. Sykes leave the bench, albeit that is pretty unlikely. If her ex-husband was on the bench instead of her there would be a chance, he would leave under Biden but doubtful she will.
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Sad to say but if the Black vote had been higher, Barnes and possibly Beasley could have won and there would have been no need for a runoff in GA.
In the same breath, if white voters would quit voting Republican in such large numbers, it wouldn’t be an issue either.
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We truly have to thank young oriole for saving the midterms.
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I have read that Republicans won 15% of the black vote this year. That’s higher than normal.
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One other note on state SCOTUS’s that I haven’t seen mentioned on this site before. Thank God Phill Nike’s funding for the Independent in the Oregon’s race didn’t lead to the Republican winning. Oregon has two vacancies coming up next month & a third will open up once justice Nelson is confirmed to the district court. A Republican governor would have been able to appoint 3/7 of the SCOTUS in a deep blue state had the ticket splitting worked.
(https://en.wikipedia.org/wiki/Oregon_Supreme_Court)
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Dobbs sparked a massive backlash from young voters who saw a bunch of retroactive hacks turning the clock back on rights they thought were safe and they wanted to send a message.
And in many areas they did.
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I am really worried about the GA runoffs, the fear i have is dems wont show up, they shortened early voting days and took deliberate steps to reduce the voting.
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All signs so far point to our side showing up in the numbers we need them to.
Let’s hope that continues.
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In addition to Warnock & Sasse, I am noticing Toomey is missing a lot of votes as well. I know he is retiring at the end of the year so if he plans on missing a lot more votes, that should also help in confirmations with or without Warnock.
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I can forsee some of the Republican senators who are retiring checking out early at the end.
If that’s the case, it will make it even easier to confirm some of the nominees this year so we don’t have to waste time next year on it.
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Not to mention all these lawyers putting their lives on hold waiting for confirmation. I can understand if Republicans were in the majority, but poor Dale Ho has been waiting 426 days since his nomination was announced.
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Hoping Judge Pryor is confirmed tomorrow before the Senate adjourns
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Jerry Blackwell could he confirmed tomorrow with two hours of post cloture time but it would take unanimous consent to vote for cloture & confirm a circuit court nominee in the same day. Republicans have been nice & not requiring the entire 30 hours in most but they usually require around 18 hours at least.
So far only Roopali Desai has been expedited that quickly out of all of Biden’s circuit court judges. Pryor will likely be confirmed Monday. I look forward to updating her Wikipedia page with Biden surpassing all previous presidents combined in black woman confirmed whenever she finally is. Great job Mr. President.
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I agree and am very much looking forward to seeing Pryor get confirmed. I’m curious to see how many Republicans end up voting for her, and if it would’ve passed a filibuster.
On another note, who are everyones favorite circuit court nominees/rankings from this year? I’d have to go with Pryor, Bloomekatz, Kahn, and Garcia as my favorites with Rikelman and Abudu being at the bottom.
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I forgot Montecalvo, she was another one I liked a lot.
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If we are doubting nominees that have not been confirmed yet, here are my top ten favorite circuit court nominees by Biden out of his 37 so far.
1. Rachel Bloomekatz
2. Myrna Perez
3. Ketanji Brown Jackson
4. Holly Thomas
5. Arianna J. Freeman
6. Roopali Desai
7. Brad Garcia
8. Nancy Abudu
9. Andre Mathis
10. Julie Rikelman
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Yup.
I think what happened with Dale Ho and a couple of others is why Biden & company waited on some nominees.
Why put people’s lives on hold for no reason.
I’ll also say this.
With the Circuit Court vacancies, I can easily see the 5th still being a ways away from being filled.
Pretty much widely accepted at this point Gregg Costa left because of the toxic environment there.
Might be a tall order to find someone willing to put up with that for the rest of their lives.
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That is a decent point, although Texas and specifically Houston (where Costa was based) has a wealth of possible nominees, and while quite a few of them many feel that way, I seriously doubt it is the majority of qualified candidates.
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It will be interesting to see if senator Grahm voted for Julie Rikelman tomorrow morning. With Democrats holding the majority & possibly going to 51 seats after Tuesday, he may decide to vote for her out of good faith knowing she will be confirmed eventually anyway.
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Was glad to see Anne M. Nardacci confirmed today to the Northern District Of New York, as the seat she filled has been vacant since 2016 and needed to be filled, as did the vacancy in Puerto Rico.
One good thing about keeping the Senate is that makes it likely all 18 of the judicial emergencies in the district courts in blue states will be filled, with Idaho likely being filled as well.
That will help not only move criminal cases along but civil ones as well.
There are ten judicial emergencies (give or take) in red states such as LA,MO,TX and FL on their district court seats.
Will be up to Durbin trashing blue slips or Republicans playing ball on whether those get resolved or not.
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Wondering the same thing Dequan.
At this point, Graham and others have to know Julie Rikelman and others are going to get confirmed, only question is whether they want to do it the easy way or the hard way.
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Rikelman confirmation isn’t guaranteed unless Warnock wins. I think Graham might force a discharge since there’s always the offshot chance that Schumer screws up a nominee who has only 50 support votes.
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Yes I’m looking forward to Rikelman’s confirmation – with Democrats realizing that protecting women’s rights might actually be *gasp* popular, I hope she’s not the last reproductive rights advocate we’ll see confirmed. Rikelman will also be a huge step up from S. Lynch, who is one of the more conservative Democratic nominees still on the bench – her rulings on criminal/labor issues could be written by a Republican (and apparently she’s pretty unpleasant on a personal level too).
If Thomas or Alito leave the bench for whatever reason in the next two years , my dream would be for Biden to replace either of them with Rikelman (though I realize Nathan, Srinivasan, and maybe Pan are probably more likely picks). Just watching heads explode on the right would be well worth it.
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I think out of the 4 pending circuit court vacancies without a nominee, there’s almost no chance of a reproduction rights nominee for the 7th circuit. The Indiana senators worked in good faith to get Doris Pryor. Also, senator Young just voted for the gay marriage bill, so I expect another consensus nominee there.
Of the remaining 3, I would like to think there’s a chance in Maryland but judging by their district court judges over the past two Democrat president’s, I doubt it.
New Hampshire surely could be an opportunity for a reproduction rights nominee, especially with the midterms over. I’m not familiar with the state’s lawyers with that background, but I’m sure there is a Julie Rikelman type in their 50’s or hopefully 40’s that could be considered.
That just leaves Texas. I have repeatedly said as good as great as President Biden has been on judges, due to his middle two DC circuit & various district court nominees in New Jersey & California, I can’t give him an A+. At best I could give him an A & as of right now I’d probably give him an A-. If he were to put a reproduction rights Latina in her 40’s or 30’s up for the 5th circuit vacancy, that may be enough for me personally to forgive all I just mentioned. While my personal favorite choices for that seat would be Amparo Monique Guerra, Rochelle Garza or Andre Segura, a reproduction rights Latina who hasn’t seen her 45th birthday yet would blow my socks off. I would probably camp outside the SJC building the night before to see her hearing live.
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Still nothing on Dale Ho…I would think if Manchin was against his nomination, he’d have said so by now….When he’s against a nominee or legislation, he doesn’t hide his opposition, he lets it be known..
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Hank, your point about Julie Rikelman replacing Sandra Lynch is an overlooked point when folks say Biden is mostly replacing Democratic jurists.
In many cases like Rikelman and Maria Kahn, they are far more liberal/moderate then the jurists they will be replacing and that does matter on criminal justice issues among other things.
As to your point, Dequan, I agree with you about Kanne’s replacement.
I do imagine the only that has been made clear to Indiana senators is that Kanne isn’t going to be replaced with a young conservative Federalist Society member but I expect whomever they suggest is going to be more centrist then not(which is still better then Kanne was.)
Finally, my hope for a SCOTUS nominee down the line is Dale Ho and if he replaces a conservative, so much the better.
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Seeing stuff like this just irks me and pains me, why should biden even have to say that he wont nominate a right wing federalist society hack to the vacancy on the 7th circuit? when that should be a given. Did president trump and mcconnell consider left wing ACLU and voting rights lawyers in state with two democratic senators? What pains me is that trump never gave this level of deference in most cases to democratic senators, yet biden is still too cowardly to name a 5th circuit vacancy and was fine with leaving . Menendez and booker didn’t get a single input when trump was filling vacancy in the 3rd circuit why not treat them the same?!
Whats the use of warnock winning if biden is still cowardly and afraid to make bold choices?
Seeing the stuff trump pulled with circuit court nominees installing hacks on the ninth and 3rd circuit despite objections of two dem senators and little input just shows how ridiculous what biden is doing now.
Its infuriating, whats the use of the senate majority if we cant ram our own van dykes and ho,s?
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@ aangren
I mostly agree with you. The only disagreement I would have is Trump did indeed give some deference in some cases with his circuit court picks. The cases you mentioned such as New Jersey & California he did not. But I’m the case of Illinois, both of his picks were confirmed without even one nay vote.
I agree that conservatives & Republicans shouldn’t even be considered for any Biden circuit court picks. But in the case of Indiana we got a 46 year old former federal defender black woman as the consensus pick. She’s better than two of the four of Biden’s DC circuit picks which require no GOP consultation.
Would I rather have had a 39 year old Jessica Eglin? Of course I would. But I think Doris Pryor sailing to confirmation is a good trade off then a discharge vote & dragging the VP in to break the tie.
If the Indiana senators continue to act in good faith & are fine with Mario Garcia, Zackery Myers or another compromise nominee for the Kanne seat then I think that’s still a win. If they start to act up, Eglin can be announced before lunch tomorrow. It’s that simple
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Speaking of Indiana’s Senators, one of them has filed to run for Governor in 2024.
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I don’t assume that one example of working in good faith is predictive of the future.
Sure, Biden should always try to work with the senators on circuit nominations. I just don’t want that to be seen as a license to delay or stall the process.
What is more, with Mike Braun running for governor expect him to be more anti-Biden. Working with Biden is highly disincentivized while running in a GOP primary in a place like Indiana.
I’d hate for us to be like, “oh, the Kanne vacancy wasn’t expected, we don’t need to worry about filling it.”
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@Zack Jones
Unfortunately it’s very unlikely that any president will pick a district court judge straight to the SCOTUS. That’s why I never seriously thought Childs was in play & picked KBJ from the start, even with Clyburn backing her so hard.
That’s why I am so unhappy Dale Ho wasn’t nominated for one of the 2nd circuit seats or a seat in the DC circuit if Schumer had his heart set on Lee, Perez & Nathan. Hell I would have rather him change his address across state lines & be given either the Merriam or Khan seat. He’s that good & in my opinion should be the first AAPI justice if Biden gets another vacancy or two if he uses the first vacancy to do what I predict & put Nathan on as the first LGBT justice.
These days there’s probably only two realistic paths to the SCOTUS. A circuit court judge in which 8 of the current justices were or US Solicitor General which the 9th was (Albeit even the 9th was nominated to the DC circuit in 1998 by Clinton but never given a vote by the Republican majority.
If Karen Henderson somehow leaves the bench, Biden really needs a home run pick to replace her. He had home runs for his first & fourth picks to that court. Henderson will probably be the last vacancy on the DC circuit for a long time unless one of them are elevated to the SCOTUS or leaves the bench for some unforeseen reason.
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Having looked into his background and found a lot of progressive stuff, I would be happy if Mario Garcia was picked to replace Michael Kanne on the 7th.
He would be the first Latino on the 7th Circuit and doesn’t appear to be much older then Kanne was when he was seated back in 87(he was 50.)
I do also agree with you about it being unlikely a district court judge would be elevated to SCOTUS but the Southern District of NY is easily among the most prominent of the district courts so it was going to happen, that’s where it would be from.
As to your final point, I do agree if Henderson leaves Biden needs to have a home run nominee like Garcia teed up but as I’ve said before, of the remaining Republican jurists on circuit courts, the only ones I could see taking senior status are George Sr Judge Ilana Rovner and George W judges Milan Smith, Julia Gibbons and possibly Harris Hartz.
The rest are only going to take senior status if there’s a Republican in office or pass away like Kanne did, as the less partisan jurists who didn’t care if they were replaced by a Republican or Democrat have all left the bench by now.
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Update on todays SJC executive meeting;
1. Julie Rikelman was a tie vote & will require a discharge vote.
2. Anthony Johnstone received 11-10 vote with senator Graham voting Pass so his nomination advances to the floor.
3. There was some confusion on the Jamar Walker vote as senator Grassley initially said he was going to vote yes, voted no then after the clerk called the vote count he changed his vote yes. Due to the confusion, after all nominees were voted in, Durbin asked for clarification on the vote count. Senator
Feinstein said she couldn’t hear in “This side of the room” despite her sitting two seats away from Durbin.
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No surprises on Rikelman.
If Warnock wins next Tuesday, I wonder if she, Abudu, Ho and others will simply be renominated again in January so Schumer doesn’t have to waste time with discharge votes and can just process them to the floor instead.
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Interesting on the Johnstone vote. I think he did that Eunice Lee too. I’m guessing this is because Daines didn’t support even though Johnstone is a conventional nominee.
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Daines opposed Johnstone solely because he IS a conventional nominee and not a far right firebreather like James Ho or Edith Jones.
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Looks like senator Sasse is back. I guess no discharge votes for now.
(https://mobile.twitter.com/SenatePress/status/1598371078526668828?cxt=HHwWuMC4reCBx64sAAAA)
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Pryor gets 62 votes for cloture. Votes this afternoon scheduled for the House resolution needed to avoid the railroad strike. So I guess Blackwell confirmation waits til Monday and Pryor Tuesday maybe.
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Just as important, hopefully Schumer sends a cloture motion for some additional judges so they will be teed up for cloture votes on Tuesday. If he doesn’t, then next week will likely be for legislation. With Warnock out most of next week & Murphy out with Covid, even if there were any judges it would have to be ones that can pass with 48 Democrats.
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@dequan why did she get so many yes votes/so few no votes? Hopefully she’s not an extremely conservative “democrat”
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No Doris Pryor isn’t a conservative. The Indiana senators did something that I think more red state Republican senators should do for circuit court vacancies. If you read Pryor’s SJC questionnaire, the senators reached out to her. I thought that was brilliant.
Pryor is a 46-year-old black woman tha was a former federal defender. They knew it was likely Biden would be fine with her as the nominee. That was much better than somebody like Jessica Eglin who is an ultra-liberal (She was my personal favorite for the seat).
Pryor was an acceptable nominee from the senator’s standpoint because she was a magistrate judge & didn’t seem overtly liberal. She will probably be in the mold of Steven Breyer was on the SCOTUS. She will likely vote with the Democrats most of the time, every now & then cross over & vote with the Republicans but probably will never anger either side too much. She’s the true definition of a consensus pick.
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That would be my guess, or they possibly do both on Monday.
Shot in the dark here, but I’m guessing that next week (Dec 5-8) will be mostly work on the defense bill and maybe Electoral Count Act. Pryor and Blackwell might be the only judges we get next week if there are two major bills to work through.
The following week (Dec 12 – 15) would probably be for the Spending bill, as that is the last week the House is in session. Perhaps we get 1-2 circuit judges or a handful of district judges sprinkled in early in the week.
The senate is supposed to be in from Dec 19-21 as well. That would likely be all judges, but I’m wondering if maybe that gets tacked on to the prior week and the senate adjourns early. Either way, I do expect a vote-a-rama session and confirmation of a large slew of judges and some other nominees before the break.
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On December 17 & 18th last year we had the vote-a-rama that confirmed double digit district court judges. There were no circuit court judges in that deal though, so I hope this year produces more than last year. Republicans will probably be in the Christmas spirit if they know 51 Democrats are coming when the senate is back in session. And that’s assuming Sasse and/or Toomey will even stick around for the last couple of days.
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Yes, I expect there to be another 10-12 district nominees pushed through again. Maybe more if there are still a bunch ready for floor votes and the GOP will relent on a few voice votes (maybe the PA four would be candidates).
Last year there were cloture votes for Sanchez and Thomas, but final confirmation was held over until January as part of the deal. Maybe we see something like that again.
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Blackwell and Pryor cloture votes done and votes set up for the railroad agreement to prevent a national strike today. Guessing confirmations for the two will be on Monday.
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https://mobile.twitter.com/SenateCloakroom/status/1598389841838116865?cxt=HHwWgsDU9fXFz64sAAAA
Yea, Pryor is going to have no issues getting confirmed.
IMO, if I had to guess who the upcoming Indiana nominee is, Mario Garcia would be the frontrunner with Zachary Myers a close second.
Either would be a good choice.
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Speaking of Zachary Myers, I was speaking with @Ethan the other day about US Attorney’s that I could see being considered for a circuit court vacancy if one occurred in their state. Here is my list of Biden US Attorney’s I think could be considered to be elevated in addition to Cindy Chung.
E. Martin Estrada
Vanessa R. Avery
Matthew M. Graves
Jill E. Steinberg
Ryan K. Buchanan
Clare E. Connors
Joshua Hurwit
Zachary A. Myers
Kate E. Brubacher
Ronald C. Gathe
Brandon B. Brown
Darcie N. McElwee
Erek Barron
Rachael Rollins
Todd Gee
Jesse Laslovich
Alexander M.M. Uballez
Damian Williams
Michael F. Easley Jr.
Dena J. King
Mac Schneider
Kenneth L. Parker
Natalie K. Wight
Jacqueline C. Romero
Zachary A. Cunha
Adair Ford Boroughs
Casey T. Arrowood
Jessica D. Aber
Christopher R. Kavanaugh
Nicholas W. Brown
William J. Ihlenfeld II
(https://en.wikipedia.org/wiki/List_of_United_States_attorneys_appointed_by_Joe_Biden)
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Dequan,
Looking at your list of Biden US Attorney’s you think could be considered to be elevated, I see you have listed Ereck Barron of Maryland. Do you think that he will be given consideration over Magistrate Judge Ajmel A. Quereshi of Judge Hazel?
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derickjohnson
I would much rather Ajmel A. Quereshi or for that matter Deepak Gupta for the 4th circuit seat but we have gotten more traditional nominees from Maryland for district court judges over the past couple of decades. Deborah Boardman is the only one of them I would like to even see considered for elevation. So I think it’s less than likely either of my two picks I would really want to see will be selected in Maryland.
So I think somebody like Ereck Barron (Who would be good) or George Hazel (Who would not be a good choice) has a better shot judging by what I’ve seen from the state. I hope I’m wrong though & next week we get another skate with Quereshi or Gupta as the nominee.
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Looks like Schumer filed cloture on five district court nominees:
F Kay Behm (ED Mi)
Kelley Hodge (ED Pa)
Mia Perez (ED Pa)
Kai Scott (ED Pa)
John F. Murphy (ED Pa)
Confirmation vote for Pryor is set for Monday evening as well.
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Guess they’re going through their 3 for 1 Pennsylvania deal instead of waiting for Fetterman. From what I’ve seen here, doesn’t sound like the republican is hard right so it’s fine I guess, still 3 more vacancies they can fill without GOP support next year.
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I’m fine with going through with the Pennsylvania deal. Murphy doesn’t seem to be overly conservative for a Republican pick & as you mentioned there are still additional vacancies for Fetterman to have a say on. I just am not happy if floor time has to be wasted on Murphy. He should be a voice vote or they should tank the deal.
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Murphy is definitely in the center right or maybe even centrist mold. This deal should be the gold standard for judicial packages in 2023-24.
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I agree @Mike.
I am all for leaving district court seats vacant in red states (If Durbin won’t do what I want & trash blue slips all together) versus ANY deal that puts a Chad Meredith type on the bench. But if the senators in Texas, Florida or other red states want to make a 3 for 1 deal with a Murphy type, in exchange for a Mia Perez type as one of the 3, that is indeed the gold standard in negotiating. But the deal needs to be 3 for 1, not 2 for 1 & damn sure not 1 for 1.
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@Dequan,
I believe the 1 in 4 deal applies to larger states, not the smaller ones. I think it’s something like 1 in 3 for a lightly populated state.
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Yea 3 for 1 is fine. I remember during Obama there were some 1 for 1 deals like Kentucky for instance. Hell in the case of Georgia I remember we got 2 circuit courts (1 for 1) & 4 district courts in which it was 3 for 1 but one of the 3 Democrats (Now GA SCOTUS chief Justice Boggs) was worse then the Republican pick. Hopefully Biden & Democrats have learned from that.
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Here’s an old article regarding the Obama deal on the 6 Georgia judicial nominees I was talking about. It still hurts to read even after all these years.
(https://www.huffpost.com/entry/david-scott-obama-judicial-nominee_n_4861043)
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Oof, that article is painful to read. That can’t be allowed to repeat itself in 2023-24
I am fine for some 2-1 and maybe even 1-1 deals in small states but the GOP picks need to be moderate centrist or center right types with little or no ties to the Fed society. I am generally supportive of the blue slip tradition, probably more than many on the board, but if GOP senators won’t play ball then I would start responding by nominating 35 year old progressives until they get the hint.
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That article should be read out loud at the start of every week to everybody that works in The Whie House Counsel’s office. FOUR out of the six were Republican picks. And did you read Kathryn Ruemmler response? My God I can’t believe she said that out loud. She should have been fired on the spot.
Durbin needs to really evaluate how hard fast he will hold on to blue slips. If Warnock wins, at a minimum senator Johnson should be stripped of his privileges.
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