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 
Then it has to be something came up in a background check that Durbin or someone else didn’t like, because at this point, worrying about a nominee being deadlocked due to blue slips etc. is a moot point.
LikeLike
Are we sure nominees don’t continue to try cases once nominated? I know that may be the case for sitting judges but for non judges like Wamble is that always the case? Why would it take Roopali Desai two months to get her commission after confirmation? There are other examples as well.
LikeLike
If Biden and Durbin were cowards, Arianna Freeman’s nomination would have been withdraw when she was not only deadlocked but had her first confirmation vote fail due to Toomey’s opposition.
Dale Ho, Rachel Bloomekatz, Julie Rikelman, Andre Mathis among others would have been left behind as well.
And Jabari Wamble wouldn’t have even been nominated if Biden and Durbin were afraid of Kansas’s senators.
I’m not a fan of everything Biden/Durbin has done (especially with risking certain seats not being filled) but what they were able to do with the 50/50 majority overall is pretty impressive and this notion that they’re cowards is IMO simply unfounded.
LikeLike
I think two things can be true at the same time. For one, I think Biden has been the best president in my lifetime at appointing judges that I want (Young progressives that have diversity in both ethnicity & background). I also think there was room for improvement. I would say with a 50/50 senate, Biden, Schumer & Durbin have done an amazing job. Here’s my top 5 mistakes so far;
1. J. Childs to the DC Circuit
2. Florence Pan to the DC Circuit
3. Christine O’Hearn to the New Jersey district court
4. Leaving 4 circuit court vacancies without a nominee when the polls showed Democrats were likely to lose the senate
5. Maria Khan to the 2nd circuit with so many more younger & progressives choices. They should have nominated Merriam to the José A. Cabranes seat so they didn’t have to worry about him rescinding since there was a second vacancy they could have nominated anybody to once his successor was confirmed & he was off the bench.
But I will still give Biden an A for his first two years so far. I can’t give him an A+ but he deserves higher than a B. I look forward to todays confirmation of the 11th Black woman to the circuit courts under Biden which dwarfs the 8 that the country had in its history prior to Biden.
LikeLike
I agree with your list but in regards to number 5, we saw naming someone didn’t stop Judge David Hurd from pulling the garbage he did.
I wouldn’t have put it past Cabranes doing the same, especially since he is much more conservative then Hurd is.
LikeLike
Definitely, I s risky would expect Cabranes to pull a Hurd if the nominee was too liberal. That’s why (Remember there were two vacancies at the same time) I think it was a mistake to nominate Merriam to the other seat. Had they nominated her to Cabranes seat, he would have been off the bench when she was confirmed September 15th. Then on September 16th or any day after that, they could have nominated Justin Driver, Christina Rodriguez or anybody else to the other seat.
LikeLike
Speaking of today’s hearings, I expect P. Casey Pitts will draw most of the fire today given the fact he’s gay and his progressive background.
He certainly would have been deadlocked if the Senate had remained 50/50.
Thankfully that won’t happen now.
LikeLike
Here’s my notes from todays SJC hearing;
1. Feinstein forgot to introduce 1 of the 2 California nominees . She had to ask Durbin for her time back after he had already gave senator Padilla the floor.
2. Senator Feinstein only once asked somebody to speak up when she asked P. Pitts to raise his microphone
3. Senators Kennedy & Blackburn asked Pitts about judge Reinhold’s (Who he clerked for) sexual harassment claims
4. Senator Blackburn grilled Arun Subramanian on an immigration group he was a part of that tried to help illegal immigrants to evade ICE
5. There was a very nice & light hearted moment when senator Kennedy said to Arun Subramanian “I’m looking at your resume, have you ever made a B in your life” .
LikeLike
All in all, this hearing wasn’t as brutal as I thought it would be, I suspect because Republicans know there is no chance of stopping confirmations now.
As to point number 1, sadly clear by now Feinstein has memory issues but unless she steps down, she’s there until 2024.
LikeLike
This interview is music to my ears
(https://www.huffpost.com/entry/chuck-schumer-judges-appeals-courts_n_639374a8e4b019c69621f85a?xtf)
LikeLike
As has been noted ad nauseam already, there won’t be much else for him to do come the new year with the Republicans controlling the house.
LikeLike
If nothing else, the 2nd Circuit is about to become a moderate/liberal court.
Didn’t expect to see that happen, especially after the Trump years.
LikeLike
Yes, of note that he plans to surpass 100 confirmations before end of year (97 now) and that he wants to rebalance every circuit if possible. Hopefully that means calling up every friendly eligible judge and sweet talking them into senior status. If McConnell could, he should too.
LikeLike
I totally agree Ben. Maybe some of them would like to be Ambassadors to The Bahamas or some other nice destination to go along with their retirement federal judicial salaries. We will need three terms of Democrat presidency & the senate to over take some circuits like the 5th or 8th but at least start now.
LikeLike
God I hope there is a vacancy from Arkansas on the 8th circuit. I honestly would bypass Josh Hawley all together & on purpose. This isn’t even a lifetime appointment, it’s a non-controversial nominee & she would be the first Black woman judge on the court.
(https://twitter.com/DSenFloor/status/1602787751300136961?cxt=HHwWgoC86fi9n74sAAAA)
LikeLike
I meant to say Missouri, not Arkansas. Although the same thing for senator Cotton as well.
LikeLike
Love that comment from Schumer. I hope (and anticipate) that we get a lot of retirements the next 18 months.
Also sounds like we’re due for another vote a rama as well. I’d love to clear a large chunk of those district nominees awaiting floor votes before they recess.
LikeLike
I wish Schumer did what Harry Reid did right before the 2014 recess. Senator Cruz objected to something (Can’t remember what it was now) that would have been unanimous consent from all other 99 senators. That would have led to the end of the year recess. Since Cruz objected, Reid tees up about another dozen or so judges that were gonna be left over for the next year when the Republicans were going to take over the majority. It was one of the few times I loved Ted Cruz.
LikeLike
We have a tentative senate calendar for 2023…..Is it me or do they have a lot more Mondays as non session days?… Also the summer recess starts in late July, they use to always be in session thru first week of Aug (sometimes few days later ie; when passing infrastructure bill few years ago)
LikeLike
Haaaaaaaaa… Well I will say at least they are being transparent about it now. Mondays for the past two years at best have been two votes but more than likely just one if that. So at least now they just erase the day all together so everybody can finally see what I’ve been saying, which is they have a three-day work week.
The only thing they did wrong was not put every Friday in red as well. And the first three weeks off in January??? I sure as Hell hope the SJC isn’t taking three weeks off as well. Wamble may be 50 years old by the time he gets a hearing at this rate.
LikeLike
Rundown on when judicial nominees can have hearings.
Lighter schedule makes sense given there won’t be any legislation.
Looks like there will still be a chance to confirm plenty of judges though.
LikeLike
I think I know y’all well enough to guess how you’re going to vote on this one, but I have to ask: would you rather have the 5 CCA noms on the floor confirmed before the end of session, or all 19 district noms?
I understand how much more important CCA judges are, I really do, but clearing that much space on the 2023 calendar by not having to vote on this many district noms seems tempting.
LikeLike
With 51 senators coming in a few weeks, I’d be fine to clear all of the district courts out before the end of the year & leave the circuit courts for next year. Trump got Stephanos Bibas cloture vote & confirmation vote to the 3rd circuit on the same day so no reason Schumer can’t do the same next year with 51 Dems.
LikeLiked by 1 person
At this point I would prefer knocking out 10-12 district nominees and clearing the floor as much as possible.
The circuit nominees can be knocked out in two weeks.
LikeLike
Am I incorrect in thinking since Schumer has full control of the floor he is no longer limited by the cap of 5 votes per day as well? That might explain the elimination of some Mondays.
LikeLike
I’m still wondering why they are taking most of January off..
If anything, since 2023 is not a major election year, they should be in more…No campaign events to worry about as in mid term or presidential year
LikeLike
No good reason to be taking THREE weeks off in January. Georgia had two senate runoffs to decide control of the senate in 2020 & they didn’t even take that much time off, let alone next year with no election I know we joke about the senate not having anything to do the next two years except confirm judges but there actually is other things they have to work on. So all this extra time off will cut into confirmations as October 2024 approaches.
LikeLiked by 1 person
True, but since Biden appears to be running for re-election, it should be that there are a few Republicans out on the campaign trail in early 2024 to help offset the fact that there are more Democratic seats up then in the Senate.
LikeLike
So with the senate being out for a month starting next Thursday, I’m not as sure right now about getting a new batch of nominees this week as I was when I woke up this morning. I was under the assumption the senate would get right to work after two weeks off (Silly me) for the new year. But now that we see they need 3 weeks off after their 2 weeks off from the 2 weeks off they just had for Thanksgiving that followed the month of October they had off, I’m not so sure we will see a new batch this week anymore.
LikeLike
I feel like an idiot for thinking they’d get the judicial ball rolling the first week of January and we’d see 30 confirmed by Feb 1…what a lazy bunch of public servants.
Hope at least their staffs that do all the work get some time off since I saw they have agreed on a budget and will add the election reform and Ukraine aid to it but nothing about the other laws.
Anyway, if anyone wants to completely see red check out this Trump judge make the first move on banning contraception. https://www.vox.com/policy-and-politics/2022/12/13/23505459/supreme-court-birth-control-contraception-constitution-matthew-kacsmaryk-deanda-becerra
LikeLike
P.S. Looking at the 5th circuit court…yeah I see why you guys get so heated about nominee age. These republican have been serving 30-40 years and some aren’t even 70 years old.
Most of the new Biden nominees better be under 40.
LikeLike
If they can’t get confirmed though, it completely erases the false appeal that they will be on the bench longer than their older contemporaries (spoiler, that isn’t really the case as much as you’d think).
LikeLike
I still don’t get where any facts show judges leave the bench before they reach the rule of 80 at any rate even remotely comparable to those who do so after. I know it makes huge headlines when a judge leaves early but that doesn’t change the numbers.
There are currently 111 federal judicial vacancies. When you add the 94 (97 that the stats show minus counting KBJ, Pan & Merriam twice) judges Biden has gotten confirmed, that’s a total of 205 article 3 judicial vacancies for Biden.
By my count, out of those 205 vacancies, only 6 left the bench before they reached the rule of 80. That’s the 5 Democrat appointed judges that resigned early plus the one Louisiana district court Trump judge that had to retire because of a disability. That comes out to less than 3% of the Biden vacancies didn’t meet the rule of 80. So 97% of the Biden vacancies left after they were eligible to retire. It’s not even close. Now if you want to throw in past presidents from the 1700’s, 1800’s & early 1900’s I’m sure the numbers would be higher. But over the past few decades the numbers are clear. Republicans realize this. I thank God Democrats are finally starting to albeit far too late.
LikeLike
Yeesh, poor Dale Ho and a few other nominees are going to be waiting a full year and a half after they were nominated to be confirmed.
LikeLike
Perhaps there aren’t the votes to confirm him? In that case, perhaps we see a new, better nominee in the new year.
LikeLike
I don’t see two Democrats voting against Dale Ho in the next Congress. Especially with him being from the home state of the majority leader. I can’t think of the last time a circuit or district court judicial nominee from the majority leaders home state has ever been voted down on the floor it it’s ever happened at all. I don’t see Dale Ho breaking that streak. He should be fine come January (Or February after seeing the 2023 calendar).
LikeLike
Looks like the Republican House knows how to work on Friday’s. They have 12 Friday’s scheduled to work. Hopefully the senate will be embarrassed & work some as well but I doubt it.
(https://rollcall.com/2022/11/30/scalises-house-calendar-features-a-lofty-goal-adjourning-for-the-holidays-by-mid-decemeber/)
LikeLike
They have witch hunts to do so of course they’ll be in session longer.
I will say Senate wise if a SCOTUS vacancy pops up I certainly expect the Senate will come in for that.
By my count, the Senate will be able to have 17/18 judicial nominee hearings which means up to 10 Circuit court judges can be confirmed along with 85-90 district court judges (pending blue slip removal.)
That will get Biden up to about 200 judges.
LikeLike
I’m actually afraid of the opposite. Judging by last year, if a SCOTUS vacancy occurs next year I expect everything to stop. We got one new nominee over an 84 day span & even some who we knew were not going to be the nominee had their hearings postponed & we had SJC hearings with 3 nominees.
The best scenario I can see the senate cancelling a recess versus changing their current calendar is probably if the vacancy occurs sometime in June. That would give Biden a month or so to announce a nominee in July. Then the normal 4 weeks to wait for a hearing would be around the start of August. I don’t think Democrats would wait an addition month of August to start the hearings until after their Summer recess in September. But other then that, they ain’t cancelling no vacations… Lol
LikeLike
Just to clarify, other than the Toomy pick in PA, have any of the recent judges that were confirmed problematic or too moderate for a Dem President/Senate to confirm?
LikeLike
@Mike
If your not including age or were there far better choices then the ones picked into the conversation & just asking which judges Biden have picked that are too moderate, here’s my list;
J. Childs (If she was picked for the 4th circuit I would have left her off the list)
Florence Pan (If she wasn’t elevated to the DC circuit I would have left her off the list for the district court seat)
Christine O’Hearn
Karen Williams
Jennifer H. Rearden
Robert S. Ballou
LikeLike
I think Lochner in Iowa is a centrist or maybe center right judge. But it made sense given the current lean of Iowa and to keep Grassley happy and compliant.
LikeLike
I’ve seen numerous people including some on this site say that Steven Lochner (And his wife) are both Democrats. Obviously not left wing AOC Democrats, but Democrats non the less. I too would have included him in my list but I’ll take their word for it as some said they are from Iowa.
LikeLike
Interesting, thanks Dequan. That’s good news. I was fine with the nominee either way.
LikeLike
It’s the day of the #khive dino/conservative positing on here with incredibly stupid takes that only Republicans would support. Openly saying someone who has worked on voting rights is a bad nominee and wishing for someone else. Guess seeing people of his own race waiting in line for 3 hours is cool. And we wonder why the judiciary is a far right cesspool.
LikeLike
I gotta stop doing this because it just keeps making me angrier but it’s wild how many Bush judges that have been serving 15+ years are under 60 vs Obama judges serving under 10 years being well into their 60s.
Obama and the Dems really dropped the ball on that one, it’s also the worst luck because a lot of these judges either won’t want to retire at 66 or 67 to be replaced by a 45 year old Biden nominee or straight up won’t qualify for senior status for a few more years when the GOP will likely take over the senate again.
LikeLike
Was just looking at of curiosity and with the confirmations of Montgomery Reeves and Douglas, there are now just 14 Clinton appointees on the Circuit Courts.
Once Khan, Bloomekatz, Johnstone, and Rikelman are confirmed that will drop to just 10.
Additionally there are just 5 HW Bush and 5 Reagan appointees remaining as well.
LikeLike
So 20 pre-GW Bush circuit court judges left after all pending nominees are confirmed. Biden needs an additional 14 circuit court judges to leave the bench & he replace them in addition to all currently announced vacancies to surpass Trump’s 54. I think a fair amount of the aforementioned 20 judges would have to be the ones to leave the bench over the next 2 years for that to happen.
LikeLike
Definitely. I could see several of the Clinton nominees opting to retire. Probably not many of the Reagan/HW crowd but Ilana Rovner is a possibility plus (I hate to say it like this) there are several that are in their 80s and 90s, and two years is a long time. Pauline Newman in particular will turn 97 in 2024, but who knows what her motivations are.
There are also some older Obama judges that could be retirement candidates as well.
LikeLike
Ilana Rovner is the Republican judge I see as most likely to retire.
The rest of the remaining Reagan/Bush Sr/W judges in active service are conservative and I don’t see them leaving the bench to allow their seats to flip.
Only way they’ll be leaving under Biden is the same way Judge Keane did.
LikeLike
@Zack Jones, Harris Hartz (10th Circuit) is another one I could see going senior.
LikeLike
Things are really slow these days. We talk about the same things over and over again.
Forget the good of the country, Biden needs to nominate new people if only to give us something new to talk about.
LikeLiked by 1 person
Indeed. As for something that hasn’t been discussed as much, it’ll also be interesting to see how many more district court openings there will be coming up, and especially if they are in states that need blue slips or not.
LikeLike
Not that this matters for judicial confirmation, but here’s a combination map of both houses that you’ve been dying for:
LikeLike
Well there’s a judicial confirmation teed up for tomorrow, though not an Article III one. Musetta Tia Johnson for the court of appeals for the armed forces has been patiently waiting on the senate executive calendar since April, so it will be good to have that one off the list and that court back at capacity.
After that, it looks like votes on the NDAA, then surely the one week funding CR. Next week, maybe there will be time for more judges while the final full year appropriations deal is finalized.
LikeLike
This is a super uncontroversial nominee who shouldn’t need a roll call vote, but a obstructionist by the name of Josh Hawley did what he does best and forced this to come up for a vote .
LikeLike
Thurs SJC meeting is canceled…..They work too hard, so they need the day off to set their fantasy football lineups for the weekend games
https://www.judiciary.senate.gov/meetings/12/15/2022/executive-business-meeting
LikeLike
Haaaaaa… They are off to a great start. No SJC meeting tomorrow, one new nominee in the last 103 days, no Wamble in Tuesday’s SJC hearing & they taking almost all of January off. I swear they lucky the Republicans are so horrible
LikeLike
The meeting only covered two nominees, one of them a judge.
LikeLike
Exactly. Nothing to make a big fuss over.
LikeLike
If I’m a guessing person, Edleman doesn’t have the votes to make it out of committee so Durbin is simply pushing him to next year.
LikeLike
Interesting article on who might be chosen for the New York chief justice vacancy. Btw, when are we getting a final decision???
(https://nysappeals.com/2022/12/15/who-should-new-york-hail-as-the-next-chief-judge-of-the-state/)
LikeLike
Sine we are on 103 days with only one new nominee & have aq vacancy on the 5th circuit, how about a little throwback Thursday. Look at this article from David Lat on November 14, 2006 discussing possibilities for the TWO Texas vacancies on the 5th circuit for GW Bush to fill.
(https://abovethelaw.com/2006/11/some-fifth-circuit-scuttlebutt/?rf=1)
Here are some highlights I noticed from the article.
1. Then Texas Solicitor General Ted Cruz was heavily considered for one of the positions. How much different would things be today if he was on the 5th circuit instead of in the US senate.
2. With George C. Hanks, Jr. being a later Obama district court pick, I sure hope Biden doesn’t have to put any Republicans on the bench in Texas for any deals over the next two years. Please Durbin get rid of blue slips.
3. Judge Sidney Fitzwater was put on the district court at the age of 32 by Reagan which left him still young enough for consideration for one of these seats. And that was AFTER the voter intimidation allegations. There is no reason for Democrats to argue against young progressives being put on the bench.
4. I agree Harriet Miers should have been given one of the two vacancies or at least a district court vacancy after her SCOTUS failure & service to GW Bush. Plus with her being in her 60’s, had she been nominated, she probably would be retiring this decade & possibly while Biden was in office.
LikeLike
This article sadly shows another failure on the part of Patrick Leahy and Democrats to play hardball with the courts.
W shouldn’t have been allowed to fill either of those vacancies unless they were moderate candidates but instead he was allowed to nominate three conservative jurists to the 5th, including Jennifer Elrod who is another shameful Federalist Society hack who has no business being on the courts.
That is in addition to six other conservative jurists to the 2nd,3rd ,4th and 6th Circuits.
Helene White, the 10th judge was married to Carl Levin’s cousin and was part of a package deal to confirm a conservative jurist to the 6th.
IMO, she should have been the only jurist allowed to be confirmed to a circuit court.
W and Republicans should have been told to take the rest of the nominees and shove them like Clinton was told.
But Leahy just had to take the high road and thus doomed so many.
Good riddance to him in retirement.
LikeLike
So true. I would even have given Leahy a pass if polls looked as though McCain was going to win in 2008. But no poll showed whoever the Republican nominee was, would have been the front runner over Hillary (The front runner at that time). The Iraq war was so unpopular, I can’t remember any poll showing the Republicans were going to retain The White House, let alone take the majority in the senate.
LikeLike
It looks like NDAA and the one week spending bill are both headed to Bidens desk. Afterwards a batch of 7 local DC judges plus some ambassadors were confirmed as wel.
My guess is next week is the Omnibus and then possibly a batch of judicial nominees as well to close out the session.
LikeLike
Well for some good news, the senate just confirmed all local DC appeals court & superior court nominees by a voice vote accept Adrienne Jennings Noti. Even though they are not lifetime appointments, I’m happy they finally are confirmed & some can build a bench for elevation later.
Hopefully net week we get a double-digit vote-a-rama before the recess.
LikeLike
It’s rather amazing how large the DC Courts are: (number of judges)
https://en.wikipedia.org/wiki/Superior_Court_of_the_District_of_Columbia
LikeLike
From letting W get nine conservative jurists confirmed to clinging to the blue slip, Leahy even more then McConnell cost us a chance to have solid liberal majorities on several courts while moderating others.
And all because he longed for a bipartisan Senate that was gone with the Republican revolution and wasn’t coming back.
If nothing else, I consider Leahy to be the best example of how even liberal allies can be blind to their privilege.
Pretty safe bet Cory Booker or Kamala Harris or Tammy Baldwin wouldn’t have been as stupid on the courts but that’s because they’re minorities and know how much the courts matter, something people who are straight and white will never fully understand.
LikeLike
I don’t wanna come off ageist but I can not believe Vermont replaced 82 year old Leahy with 75 year old Welch.
Dems there are just taunting the universe to give their republican governor a chance to appoint a 50 year old Collins republican to lock up another blue seat for a generation.
LikeLike
Phil Scott voted for Biden and has promised to appoint a Democrat to either seat if it comes vacant. He is a RINO in every sense.
Still, the Vermont D supermajority would be wise to change the law anyway just to be safe.
LikeLike
Oh hell yeah with those DC judges, 15 year appointments are as good as half of Obama judges time on the bench so I’ll take that any day with a voice vote.
I see someone already updated their info into the wiki, people on point!
…weird, Vijay Shanker was a Trump nominee that didn’t make it through, Biden pulled his nomination in 2021 and nominated him this year. Wonder if he was part of a deal with republicans?
LikeLike
Definitely a good day. There should never been a minute of cloture time wasted for local DC judges. I’m still mad about the cloture time sent on the Armed Forces judge today.
And I doubt Vijay Shanker is a Republican. Trump nominated him June 25, 2020 so it’s more likely Trump made a deal with Democrats with such little time left in his term & no assurance he would get re-elected (Which of course he didn’t).
LikeLike
@dequan it is concerning to me that Shanker and Howard were both previously nominated by Trump. There is no reason why Biden can’t find new names. One of the nominees, who was a proven liberal (Tovah Calderon), was voted out of committee but her nomination was withdrawn after 10 months of inaction. She probably said I’m not waiting anymore and the Biden admin that.
LikeLike
Oh I definitely agree with you there were better options than anybody Trump would nominate. My earlier comment was just responding to one of the other users that said just because Trump nominated somebody that meant they were conservative or a Republican. I was making sure they understood that isn’t necessarily true because Trump actually put numerous Democrats in the bench.
But a separate conversation as to if those were the two best picks for those seats, particularly from DC would definitely get a big fat no from me. But perhaps they are Democrats that were acceptable for Trump to nominate so Biden wanted a smoother path to confirmation in a 50/50 senate. Hopefully that thinking will be gone over the next two years with a 51 seat majority (Or 50.5 depending on what side of the bed Sinema wakes up on in any given day.
LikeLike
Yup it’s especially bad when it’s a place that votes as blue as DC (92% in 2020). It shows a lack of preparation by the Biden admin imo. Calderon wasn’t that progressive, she is a United States attorney general.
For the Superior Court of DC, I don’t expect Adrienne Jennings Noti to ever be confirmed. She was voted out of committee February 2022. She has lots of pro bone work but like Calderon, it is clear that the Biden admin just doesn’t have the energy to get her across the finish line by forcing a vote.
LikeLike
I can’t see why Adrienne Jennings Noti shouldn’t be confirmed, just because she can’t be confirmed by voice vote, she’s just one roll call vote away.
There are still seven vacancies without candidate, Edelman will likely be elevated and two other ones will leave the bench in February 2023, so though I don’t like the spending of floor time for a DC Judge, I think that’s acceptable instead of starting the whole process again, and get something in 2024.
LikeLike
@Thomas
I believe there are three GW Bush judges up for term ends next year. I don’t know anything about them but I hope Biden lets them expire & doesn’t renominate them. I’m sure he can find three young progressives to put in their place to set up for elevation at a later time. I believe he has already renominated some of Obama judges so I hope he doesn’t repeat that for Bush’s.
And I agree, Noti should definitely be confirmed even if that means with a cloture vote. I would just do what I suggested a long time ago. Any discharge votes (Or votes for DC local judges) should be done on Fridays. There’s currently no punishment for Republicans forcing these votes. Make them at least have to work on a Friday.
LikeLike
Still eight vacancies left to be filled on the Superior Court of the District of Columbia.
Here’s hoping that is resolved sooner rather then later and that next week, we confirm several more district courts judges, especially in the SDNY and California’s districts which have been suffering judicial emergencies for years now.
LikeLike
I am really hoping natasha merle,chodhury, jessica clarke and herman vera can be confirmed this year, it would be awesome, they have waited so long and they are excellent nominees in my opinion among the best biden has nominated including appellate nominees too.
Also i didn’t realize that brad garcia is replacing someone 47 years his senior in judge judith rogers that is excellent, i just hope garcia stays on the court for decades as well.
LikeLike
Agree Aangren.
If I had to guess I’d imagine those 5 plus maybe 3-5 others plus cloture votes for Garcia and Chung happen at the end of next week. That would mirror what we had last December and clean up most of the nominee list. Also, holding cloture votes on Garcia and Chung gives the senate something to deliberate and vote in those first two weeks, since everyone else would have to go through SJC again.
LikeLike
Shifting gears from our ad nauseum discussion of Pat Leahy’s performance as SJC chair.
If there’s no new nominees for the year (despite the hopes and expectations of many in here) and if the more recent (and stalled) Biden nominees don’t get a final confirmation vote before the senate adjourns sine die and returns those nominations to the White House, who do you expect the White House will NOT renominate on January 3?
I can think of two nominees:
Bill Pocan – EDWI
Despite the perfidiousness of Ron Jon, I am glad this nomination is dead. To paraphrase Julius Caesar, in this case, I love the treason but hate the traitor. Biden should now take the opportunity to call Johnson’s bluff and nominate someone else from the list of candidates. But to keep this seat open ostensibly because of the poor treatment of Pocan would be ridiculous.
Jorge Rodriguez – NDNY
Since none of the three old school Dems in charge of filling this seat would ever play hardball with Hurd, this is another nomination Biden may let expire. I hope that next year, one way or another, Hurd is off the bench. Biden can then renominate Rodriguez at that time, if they think it’s worth dealing with Rodriguez’s possible judicial rebuke. Or just nominate someone else, for good measure.
NOT on my list
Dale Ho – SDNY
A year and a half of waiting doesn’t make me feel good about Ho’s prospects, despite the confidents of some on here who thinks he’s assured confirmation. The failure of this nomination would be a politically seismic event for me. I already do not vote for Kirsten Gillibrand. If Schumer messes up this nomination, November would be the last time I’d ever vote for him. (Not for nothing, I am guessing that Ted Cruz might continue to be out of the senate for the rest of the year to deal with his family issue. Now’s a good time to call up the Ho discharge and confirmation votes. Yes, I would “waste” the discharge vote time for this nominee.)
LikeLike
@Gavi
Those are the only two I see Biden not renominating as well. And I too would be happy if 62 year old William Pocan’s nomination is killed, & would 100% nominate one of the other three from Johnson’s list. The woman that’s a federal defender & about a decade & a half younger should have been picked in the first place anyway. And Durbin 1000% should remove Johnson’s blue slip privileges if he tries to screw the nominee up. If he doesn’t, he should be removed as SJC chairman despite me think he is doing a very good job overall.
I agree Jorge Rodriguez will not be renominated as well. I would not have included him on my list a month ago because I think they would have switched him to the vacancy Southern district seat. However after the judicial rebuke from his would be future colleague, I see his nomination officially dead now. They can use judge Hurd as the reason they can’t nominate him again the same way they used Rand Paul as the reason they couldn’t nominate Chad Meredith.
Nobody else left over from this year should be left off from renomination next year. Dale Ho should be confirmed next year. As I’ve said before, a district court nominee from the home state of the majority leader will not be the first nominee killed on the floor. It just won’t happen without some major revelation between now & next year.
LikeLike
Haven’t read all the posts lately, but agree that complaining about past mistakes by Leahy or whoever else seems like a waste of time.
I agree that Pocan’s and Rodriguez’s nominations are effectively dead, and thank god Dems kept the Senate because I’m not sure if they would’ve made time to confirm Dale Ho otherwise (as great of a nominee as Ho is, I would’ve prioritized Bloomekatz, Abudu, and Rikelman because they are appellate nominees). On that note, have any district court nominees that have been deadlocked in committee been confirmed? I know a few have been discharged, but I was thinking only appellate nominees who had deadlocked have subsequently been both discharged and confirmed.
On another note, I’ve been puzzled by the delay in confirming Abudu – her résume is pretty comparable to Myrna Perez, whom both Manchin and Sinema voted for, so I would think she has the votes for confirmation. My memory is that she was nominated before Freeman, and unlike Freeman she had the backing of both GA senators. I agree with prioritizing CA3 (where there will be a tie between D and R nominees once Chung is confirmed) versus CA11 (where Rs have a sizable majority), but honestly I don’t think Schumer’s on top of it enough to be aware of that.
Lastly, do the folks advocating for abolishing blue slips not see how that would backfire on blue states in a future R administration/Senate? As a blue state resident, I wouldn’t want the likes of Aileen Cannon deciding that NY/IL/CA’s abortion protections are unconstitutional because the federal Constitution guarantees fetal personhood (or whatever drivel Fed Soc is coming up with these days). The only rationale for abolishing blue slips now is that the Republicans will do so when they have power again – I’m not entirely convinced that’s the case, but if so, the Senate should pass some rule codifying blue slips/requiring a 60-vote threshold to abolish them. (And that’s ignoring the fact that confirming district judges in red states does little good when the 5th/8th/11th circuits are so extreme that they’ll reverse any liberal district judge ruling, whereas the 2nd/9th are closely split enough that a conservative panel may affirm a conservative district judge decision).
LikeLike
@Hank
As to your last point first, I for one am one that is advocating calling Republican senators bluff first & then when (Not if) they act in good faith then I absolutely would abolish blue slips. First off, I absolutely think Republicans will abolish them once they are in full control again. What out of everything that we have seen would convince anybody they won’t?
When they couldn’t confirm a SCOTUS nominee they eliminated the filibuster to confirm Gorsuch. When they couldn’t confirm blue state circuit court nominees to blue states, they eliminated blue slips for circuit court judges. We can’t keep letting them be first to break a norm. That’s how Trump got 230 judges, 54 circuit court judges & 3 SCOTUS in four years. Because Democrats kept playing by the rules & norms, leaving countless seats vacant, then Republicans get into power, break the norms & filled those seats.
Yes there will be a day Republicans are back in power & they can put some hacks into the district courts of blue states. That will suck. But what will suck more is if we don’t change the rules first this time so they can fill those seats PLUS the red state seats that are left unfilled because we are worried about norms.
As for Abudu, her background is to the left of Myrna Perez. And I don’t believe any deadlocked district court nominee has been confined as of yet to answer your other question.
LikeLike
I agree with calling their bluff, and I don’t care about norms either. I just want to protect the rights of people whose rights we can do the most to protect – which in this case are people living in blue states. If Kentuckians and Alabamians want Republican Senators deciding that they be ruled by Fed Soc judges, then that’s their loss. But that should not be imposed on New Yorkers or Chicagoans for example. That’s why my preference is just that Dems do that by passing a rule codifying blue slips/requiring 60 votes to abolish blue slips for district court judges, instead of leaving it to the majority leader or the chair of the SJC. (Anyone know if that’s a thing the Senate can actually do? Especially if the Dems do it now, the could probably get 60 votes to pass it and make it hard for Republicans to abolish blue slips in the future, as I’m sure some red state Republican senators wouldn’t love being cut out of the nomination process altogether under a Dem administration).
And @Dequan to your argument that Republicans will do it eventually, I think that’s always possible but not as likely as it was with appellate judges – after all, why didn’t McConnell just junk blue slips altogether in 2017 instead of keeping them for district judges? McConnell has definitely commented in some article about how appellate judges were his first priority (as evident by the fact that Biden’s 2-year numbers will fall short of Trump’s on appellate judges while exceeding Trump on district judges). The reality is that the Republicans will have plenty of appellate and red state district court seats to fill, and we should be making it harder—not easier—for Republicans to fill blue state seats.
I’d just rather have Democratic senators with more backbone who will keep blue state district courts open during a Republican vacancy. Dems should be categorically refusing to allow Fed Soc members to occupy any district court seats in blue or purple states, and if the price of that is leaving red state seats vacant, then honestly it’s a good deal.
LikeLike
Charlotte Sweeney was the only district court nominiee so far, who has been deadlocked, discharged and confirmed so far for the District of Colorado
LikeLike
Agree with all of these points. Republican administrations are more prone and willing than Democrats to nominating hacks, so why should Democrats give Republicans an easier time doing so the next time they are in power. We need fewer Cannon’s on the federal judiciary.
LikeLike
I think all the pros for Democrats not scrapping blue slips hinge on Mitch McConnell & Linsey Graham not doing it anyway once they are back in power. We heard these same similar arguments when Democrats were discussing scrapping the filibuster. Then these same arguments when they were discussing scrapping blue slips for circuit court judges. Those arguments have led us to a 6-3 conservative SCOTUS & Trump getting 54 circuit court judges confirmed.
I just don’t have as much confidence in those two men as others seem to have. Maybe they have had an overnight change of heart & will be honorable men once back in power. I would love to be wrong. I would love for a future President DeSantis to not have the SJC scrap blue slips & put right wing hacks in district court seats all across the land, including dozens of red state seats that were left vacant by Biden. I can’t tell the future, but I sure know from looking at the past that I just am not nearly as confident as others.
Fool me once, shame on you. Fool me twice, shame on me. They haven’t invented a saying for if you get fooled three times but if the Democrats don’t scrap blue slips, I am sure they will in the next decade or so.
LikeLike
Yes I don’t trust McConnell or Graham as far as I could throw them – McConnell has never been honorable for a day in his life, which is why I want to reform Senate rules and make abolishing blue slips for district court seats something that takes 60 votes (rather than just up to the majority leader/SJC chair’s discretion).
I definitely agree that not doing anything about blue slips is ridiculous though given the Republicans’ untrustworthiness – I just don’t believe that the best solution is to trade a few center-left district court judges in Alabama or somewhere that doesn’t matter (because those judges will be constantly overruled by conservative appellate judges) for who knows how many Fed Soc judges ruining blue staters’ lives.
The whole debate over blue slips is premature anyways given that there are plenty of blue state vacancies to fill first. I’m glad to see Amy Berman Jackson go senior on DDC, and let’s hope many more Dem appointees (especially on the appellate courts) join her – the WHC’s office should be sending holiday cards to every eligible liberal judge to remind them of the many perks of going senior.
LikeLike
I think Dale Ho will be confirmed quickly in the new year. Manchin might vote no as a signal vote (I believe had we lost the senate he’d have been a yes though) but everyone else should be on board.
LikeLike
One way or another, Dale Ho will be confirmed in the next couple of months.
As for Jorge Rodriguez, his nomination is DOA and for the people who say Democrats should have played hardball with Judge Hurd, look no further then RBG or Judge Michael Kanne.
If someone doesn’t want to retire or pulls back retirement plans, there is nothing anyone can do unless you can come up with 67 votes to impeach them.
Drives home the need for court reform but we don’t have the votes for that.
LikeLike
This is for the wishful thinking dept…..Wouldn’t that be awesome if Dale Ho was removed from the SDNY nomination, and given a Circuit court seat?…..He should have been the choice for one of the many 2nd Circuit seats there were, or one of the DC Circuit seats..
Then again, SDNY is probably the most high profile district court seat there is
LikeLike
I’ve said that countless times myself Rick. There were several missed opportunities. I get Schumer wanted to put a Black woman on the end right out of the gate so there was a viable New Yorker up for consideration as the first Black woman when a SCOTUS seat opened up. So I was good with Eunice Lee even though personally I would have rather it was Melissa Murray who is 5 years younger.
I completely understand why he wanted a Latina on the 2nd as Sotomayor is the oldest of the liberal justices at the time (Not counting Breyer since Biden pledged to put a Black woman on the bench first). Myrna Perez was a phenomenal choice.
I also see why he wanted Allison Nathan on the 2nd to set her up for consideration for the first LGBT justice. She is my pick for the next justice if another non-Sotomayor vacancy occurs in the next two years & I’ve guessed the last three justices correctly.
I think the missed opportunity was the DC circuit. I would have picked Dale Ho as the first AAPI judge on that court over Florence Pan.
LikeLike
North Carolina Govenor Roy Cooper appointed Allison Riggs (Born c. 1984) to the state Court of Appeals. She is the Co-Executive Director and Chief Counsel for Voting Rights at the Southern Coalition for Social Justice to the state Court of Appeals. I highly expect to see her get heavy consideration for a future appeals court vacancy if there is a Democrat president & senate majority.
She was on the very progressive list The People’s Parity Project put out last year of potential federal judges. So far Biden has only nominated one person from their list, Natasha Merle. It’s a really good list so I hope we see more names from it over the next two years.
(https://peoplesparity.org/unrigthecourts/#list)
LikeLike
Hi there, I forget who updates the judicial wiki but I’m seeing a CNN article that says there are 28 circuit judge confirmations not counting Jackson-Brown. I double checked the AFJ tracker and it does look like there are 28.
Could you double check and update, it currently lists 27 as of the 13th?
LikeLike
Wikipedia & CNN are correct. TheAlliance for Justice tracker is the one that is incorrect. I have emailed them several times in the past as well. For about six months they had two vacancies for the district court of Hawaii. I wish I could update their site like I do Wikipedia’s but unfortunately whoever is in charge of it probably doesn’t check it daily like I do… Lol
And oh yea I forgot Charlotte Sweeney is the only district court nominee that has been deadlocked & still confirmed under Biden so far.
LikeLike
I meant that ALJ lists 29 circuit judges confirmed (but they include Brown Jackson) but wiki says 27 which I assume excludes Brown as she was removed and added to the SC.
So I’m confused why wiki says 27 (when it’s not including Brown Jackson) and AFJ says 29 (when it includes Brown Jackson).
I’m trying to figure out if a judge has fallen through the cracks.
LikeLike
Biden has had 28 circuit court judges confirmed. That’s including KBJ which you have to include her. Wikipedia (Which I edit) is correct. Alliance for Justice is the one that is wrong, but I don’t edit that.
LikeLike
Was expecting to see a few more Clinton/Obama judges state that they’ll take senior status since they know a replacement can get confirmed now.
Maybe after the holidays?
LikeLike
Looks like another DC District Court Opening
Court: DC – DC
Incumbent: Jackson,Amy Berman
Vacancy Reason: Senior
Vacancy Notification Date: 12/12/2022
Vacancy Date: 05/01/2023
LikeLike
Very good. Amy Berman Jackson was one of the judges I had on my list that I thought would take senior status if Democrats held the senate majority. She has been involved in some very high profile cases, particularly involving Trump & January 6th so I figured she would leave once she reached the rule of 80. She is a very fine progressive judge so hopefully Biden nominates another in her mold.
LikeLike
So she will serve 11 full years. The average length of service for an Obama judge is 10 years. The Obama admin did an awful job with judicial nominations.
Meanwhile Cartwright, Merle, and Clarke (36, 38, 38) at their time of nomination (January 2022, January 2022, and December 2021) are all sitting there with Schumer having zero care in the world. We are so screwed.
LikeLike
I still am hoping (And expect) to see a vote-a-rama before the recess begins next week. With the disappointing news of the senate taking a month off, I can’t imagine them leaving with this large number of nominees being left for February. Seeing almost all of the local DC & the Armed Forces nominees get confirmed last week, I’m confident we will see some more next week similar to the large batch of confirmations we saw last December right before they left.
As for a new batch of nominees, we could see Biden announce new nominees next week. If he does, he probably will wait until January to send their nominations to the senate. Announcing them next week will at least start the 4 week clock to allow them to get a SJC hearing when they return from vacation.
LikeLike
I feel like almost any left-of-center former SCOTUS clerk working in the DC area could receive consideration for this seat. Here are the ones I think are the most progressive options:
-Kwaku Akowuah (born c. 1977): Partner at Sidley Austin. Clerked for Breyer OT 2012.
-Ginger Anders (born c. 1977): Partner at Munger, Tolles, & Olson. Clerked for Ginsburg OT 2004.
-Kelsi Corkran (born c. 1976): Supreme Court Director and Senior Lecturer, Institute for Constitutional Advocacy & Protection, Georgetown University Law Center. Clerked for Ginsburg OT 2013.
-Roberto J. Gonzalez (born c. 1978): Partner at Paul Weiss. Clerked for Stevens OT 2004.
-Matthew Hellman (born c. 1976): Partner, Jenner & Block. Clerked for Souter OT 2004.
-Ariela Migdal (born c. 1974): Partner, Kellogg Hansen Todd Figel & Frederick. Clerked for Breyer OT 2003.
-Eloise Pasachoff (born c. 1975): Professor of Law, Georgetown University Law Center. Clerked for Sotomayor OT 2009.
– Matthew E. Price (born c. 1975): Partner, Jenner & Block. Clerked for Breyer OT 2008.
-Sambhav “Sam” Sankar (born c. 1970): Senior Vice President of Programs, Earthjustice. Clerked for O’Connor OT 2003.
-Zachary Schauf (born c. 1984): Partner, Jenner & Block. Clerked for Kagan OT 2012.
-Julia Fong Sheketoff (born c. 1982): Assistant Federal Public Defender (Appeals), Public Defender Service for the District of Columbia. Clerked for Breyer OT 2013.
-David Zionts (born c. 1983): Partner, Covington & Burling. Clerked for Breyer OT 2010.
non SCOTUS clerks:
-Loren AliKhan (born c. 1983): Associate Judge of the District of Columbia Court of Appeals. Former Solicitor General of DC.
-Roscoe Jones (born c. 1977): Partner, Gibson, Dunn & Crutcher. Board member, American Constitution Society and the Lawyers Committee for Civil Rights Under Law
-Nicole Saharsky (born c. 1974): Partner, Mayer Brown. represented United States Women’s Soccer team in lawsuit over unequal pay.
LikeLiked by 2 people
I like Roscoe Jones for one of the Maryland District Court vacancies.
LikeLike
@derickjohnson
do you know for sure that he lives in Maryland and not DC or northern Virginia?
LikeLike
Great list as always Ethan. Any combination of these names would be good for the DC district court & whoever isn’t chosen can be considered for the remaining local DC court of appeals vacancy & the near double-digit vacancies on the DC Superior Court. Those 15-year term judgeships should be used to set up for elevation at a later date.
Out of your list my personal favorites would be Roscoe Jones (born c. 1977), David Zionts (born c. 1983), Roberto J. Gonzalez (born c. 1978) & Matthew Hellman (born c. 1976). I would also add Tiffany Wright (born c. 1981), Karla Gilbride (She’s currently serving in the administration & Ariela Migdal (born c. 1974) too.
LikeLike
Ethan
Not sure if he lives in Maryland.
LikeLike
Ethan found this out about Roscoe Jones.
Roscoe Jones, Jr.
Partner and Co-Chair of the Public Policy Practice Group, Gibson Dunn & Crutcher LLP
Roscoe Jones, Jr. is Partner and Co-Chair of the Public Policy Practice Group at Gibson Dunn & Crutcher LLP, where he helps clients navigate complex public policy matters and congressional investigations.
Previously, he was chief of staff to a member of Congress, legislative director to Senator Dianne Feinstein, senior counsel to Senator Cory Booker, and senior counsel to Senator Patrick Leahy on the Senate Judiciary Committee. He served as special counsel to the Tom Perez, the then-Assistant Attorney General of Civil Rights at the U.S. Department of Justice, appellate attorney in the Civil Rights Division, and assistant U.S. attorney in the Western District of Washington. He graduated from Stanford University and the University of Virginia Law School.
He clerked on the U.S. Court of Appeals for the Fifth Circuit for Judge Carl E. Stewart and U.S. District Court of Maryland for Judge Alexander Williams, Jr. He teaches at the Yale Law School and University of Michigan Law School and previously taught at the Harvard Kennedy School, Georgetown University Law Center, George Washington University Law School, and University of Washington Law and Evans Schools. A Stennis Fellow, Wasserstein Fellow, and Murnaghan Fellow, he has been published in the ACS’s Harvard Law & Policy Review.
LikeLike
I found an interesting interview with Amy Coney Barrett, talking about her first days on the Supreme Court. Some activists may find this surprising, but all of the justices get along with other very well with no regard to ideology.
LikeLike
I heard the same thing with Scalia and Ginsburg and my take is that they are all friendly because the liberal members are privileged enough to be insulated from the garbage the conservatives are doing.
There is no way on earth I could be friendly or civil towards a bigot like Alito or Barrett.
LikeLike
I have to believe we’ll see some nominees this week, if only so they can go through the background check process and be ready for hearings by the end of next month.
LikeLike
I don’t think we’ll see any new nominees till the beginning of the 118th Congress.
LikeLike
Indeed. People have been saying this every single week since the midterm.
How I’d love new nominees.
LikeLike
Only reason I see nominees this week is because it generally takes 20-30 days to do all the background checks etc. on them.
Nominating them now would clear most of them for a hearing next month.
LikeLike
I believe The WH could release names as late as 12/28 and still have them be a part of that first nomination hearing in 1/25
LikeLike