The Unexpected Opportunity – Assessing the Landscape of Judicial Vacancies

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.


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.


    • Sadly anybody that takes the entire month of August off, only to come back & take the entire month of October & the first week in November off, to then come back & take the last two weeks of December off to then come back for one day & proceed to take three more weeks in January off, probably can’t be shamed at this point.

      Liked by 1 person

  1. The names mentioned are either going to be confirmed soon in some kind of deal or simply confirmed next year when it’s 51-49 and Democrats don’t have to waste time with discharge votes etc.
    Most likely the latter.


    • I think there’s a good chance we get a vote-a-rams before they recess this week. Particularly since they are taking a month off.

      Does anybody know why the senate adjourned at 1:26am last night? They didn’t have any confirmation after around 8pm & I didn’t see any cloture time being done or many speeches being given so I was curious as to why so late?


      • Ah ok. I kept refreshing my browser thinking it was frozen or something because it just kept saying quorum call & it was after 11pm… Lol

        As for the other comments, can Schumer file cloture for judges now & immediately vote on them when they return in January? I know he did that at the end of last year & voted to confirm Holly Thomas & Gabriel Sanchez when they returned but I thought that was because it was the same Congress. I thought when there is a new congress after an election, the nominees returned to the SJC & needed to be voted back out to the floor. I could be wrong but if I’m right, I sure hope Durbin doesn’t take the first three weeks of January off. At the very least hold an executive meeting.


      • News this morning has cloture being voted on for the omnibus today and then there’s questions on whether republican senators will drag things out for final vote into Friday. Is this like the past year when Cruz dragged things out, resulting in time for more judges? If no one drags their feet, like Schumer hopes, and they can pass the bill early, they may recess without any judge votes I would think.


      • @Dequan
        “… [C]an Schumer file cloture for judges now & immediately vote on them when they return in January?”

        Short answer: impossible.
        Full answer: everything IS possible in the senate with a unanimous consent agreement. I think I mentioned before that when you see any sort of one-offs or some sort of unusual senate action, assume that it’s via a UC.
        At the end of EVERY year (not just the year after an election) — sine die — the senate sends back all nominees to the president.
        That there was post-cloture action on the Sanchez nomination without the nomination going back to the SJC is simply a matter of a UC.

        One last thing I feel I should address due to the widespread belief on here: A unanimous consent agreement doesn’t necessary mean that all 100 senators agree to something or that Republicans are working in good faith. It often means that objecting senators can’t always be present to make their objection. Case in point: The Sunshine Protection Act. It passed the senate by unanimous consent, suggesting that all 100 senators support it. In truth, someone on Cotton’s staff is probably unemployed now for not informing him of the vote, which he opposes.
        Also, this is where the whip teams come on. If a caucus takes a position against an action, there’s an organized effort to make sure there’s someone’s on the floor to object to a UC request. Of course, that’s more difficult on the January 3/4 of a non-swearing year, thus Thomas and Sanchez.

        TL;DR: When in doubt, assume a UC.


      • Aaahhh, that’s an excellent explanation Gavi. Great explanation about unanimous consent. I am guilty of assuming that means all 100 senators agreed but I see your point now. For instance if 99 senators agree on something & senator Cruz is the lone senator that disagrees, they could get UC now with him being out to tend to his daughter after her suicide attempt. That is of course unless he could get another senator to object on his behalf.

        With that said, let’s hope Schumer plays hardball threatening the 3 weeks off in January if a UC isn’t agreed to if some sort. Now so I think he would cancel any recess time in the end? NO… But maybe he can threaten it & convince the Republicans he would… Lol

        Liked by 1 person

  2. Schumer has said they plan on passing GWB’s 100 confirmed judges, which implies at least 4 more.

    I predict another vote a rama on Thursday night, I just don’t have a feel on if it’ll be monster batch (15+) or maybe just like 5-6.

    It would be great to get at least Vera, Clarke, Merle, Choudhury, Reyes, and Mendez-Miro confirmed, as those 6 have all been waiting at least 6 months and in Vera’s case 15. It would also be great to hold cloture votes for Garcia and Chung so that those two can be tee’d up for votes in January while we wait on Judiciary to vote everyone else back out.

    For comparison’s sake, last year there were 9 district and 2 federal claims confirmations with two circuit cloture votes as well, so this should be plausible.


    • It’s pretty clear imo that they’re not going to pass GWB’s 100 confirmed judges. If they just need to confirm 4 more to get there, it is a laughably easy task but this is the Senate so of course it won’t be met. Instead they are confirming worthless positions in the grand scheme of things such as the Deputy Director of the Office of Personnel Management, Board of Directors of the Federal Deposit Insurance Corporation, and Permanent Representative of the United States of America to the Organization of American States.


  3. I am watching right now susan collins giving a tribute speech to leahy, he was a good man and a good senator but the damage he did to the judiciary allowing GOP to have holds with blue slips for circuit seats will take decades if not even longer to undo, he was too concerned with getting along

    Liked by 1 person

    • Aangren, agreed.
      There were flips or holds on certain circuit court seats that couldn’t have been avoided.
      But between letting George W get his picks to Circuit Courts after 2006 to his clinging to blue slips under Obama, Patrick Leahy gave Republicans about 20 circuit court seats (give or take) that they shouldn’t have had and the consequences of that will be felt for decades, especially in the 11th Circuit which should have a moderate/liberal majority right now as well as the 5th,6th,7th which saw flips/holds that never should have happened.
      Whatever good Leahy did, I simply can’t ignore that part of his legacy.


  4. Is everyone here still sure of getting judges confirmed before the next congress? This is already wednesday, no cloture votes have been invoke its looking less likely we can surpass the 100 judges mark. i can be wrong, what are everyone’s thoughts? It would really suck if chodhury, merle, clarke and vera had to wait until february to get a confirmation vote. I just dont see if there is any time remaining to get dozens of district nominees approved before the senate goes on holiday break for the christmas


    • I see no way Schumer sound recess without at least passing 100 judges. They are at 97 (The real number is 94 because 97 counts KBJ, Merriam & Pan twice) but they will use 97. There’s more pending nominees now than last December 17th when they recessed so in all likelihood Schumer has worked out a unanimous consent agreement already to confirm some judges.

      Unfortunately most of the judges not confirmed in this UC agreement won’t be confirmed before February since they are taking most of January off (Nobody can still explain to me why they need a month off). It’s frustrating but the senate Democrats know with the current Republican Party, there’s no viable alternative to them if you care about progressive causes so they can blatantly abuse taking so much recess time off.


    • Yup and in regards to Thomas, it should be noted Jimmy Carter tried to get Thurgood Marshall to retire but he refused thinking he could survive an eight year Republican term.
      He was right but what he couldn’t forsee was that Republican would have coattails that would extend WH control for another four years.
      End result, we got Thomas.
      Just a darn shame Marshall didn’t have a crystal ball and forsee Clinton winning, we likely wouldn’t have had Thomas if he had.


      • I’ve long said both Thurgood Marshall & RBG could never be my favorite justices of all time because of when they decided to & not to retire respectively. Another Marshall, Justice John Marshall Harlan, is actually my favorite of all time. He too contemplated retiring in protest of many of the anti civil rights rulings the court made with his dissent but decided not to. Both him & Justice Souter (After Bush v. Gore) considered retiring in protest but didn’t do so. I wish Thurgood & RBG had better foresight to go along with their stellar legal careers.


  5. Getting to 100
    I agree with Dequan.
    Schumer said that he’s going to beat the 100-judge mark. It should be career-ending if he doesn’t deliver only a few days after saying that. I can’t believe he’s leaving Bloomekatz on the table for JD Vance to cause trouble with. Sure, Vance wouldn’t be able to ultimately block her, but why make her into more of a controversial nominee?
    What’s happened to Ho and Abudu is simply unjust.
    The next few days will be crucial because some people on here think Biden will announce nominations this week, and Schumer’s race to 100.

    Sotomayor and Kagan
    This is where you lose me.
    I am for the appointment of young judges, not for the pushing out of judges in their 60s! 68 with lifelong type 1 diabetes is NOT 88 with three bouts of cancer, a personal presidential request, and a clear replacement strategy.
    Even so, say some people would be willing to entertain the idea of Sotomayor stepping down. I don’t think many would go along with forcing Kagan to do the same.
    Do we think we are now in a world were Dem-appointees can only serve until the NEXT dem presidency? Dem-appointees are relegated to temporary tenures while Republican-appointees semi-permanent hacks?
    After his confirmation Clarence Thomas vowed to stay on the bench for 43 years, to match his age at confirmation. And I think he’s spiteful enough to pull it off.
    The prospect of suffering under Thomas for nearly 50 years with only a blip of sanity from Sotomayor is really scary.


    • @Thomas

      A federal judge can retire when they meet ALL of the following three requirements;

      1. Reached the age of 65

      2. Age plus years of service equals 80

      3. Served at least 10 years


      I for one am not advocating Kagan retire, but interesting the article included her too. I do think Sotomayor should give it strong consideration in early 2024. By then both Myrna Perez, Brad Garcia & whoever the 5th circuit pick is should have had a good amount of experience on the circuit courts & be primed for elevation.


  6. For me, I can understand Marshall’s thinking to some degree but RBG had no such excuse.
    Having survived cancer twice and knowing what could happen if she rolled the dice, she choose to do so anyway, and cursed two to three generations with someone who opposed everything she claimed to care about.


  7. Two points:

    1. They’re unlikely to confirm any judges this week given that Senators want to get out of DC before the projected snowstorm on Thursday: Will they be in next week? I assumed not, which is why I don’t anticipate any judges confirmed until the new Congress. Not as concerned about it as other people though, since (1) the senate won’t do much the next two years, and (2) it’s not like Biden has nominated any more judges in the meantime that are adding to the queue.

    2. Sotomayor should absolutely retire before 2024 – I do not give a damn about how long each individual appointee serves on the court, as the only thing that matters is that the seat stays in Democratic hands. With the Democratic disadvantage in the senate (and Republican voter suppression blesses by this joke of a Supreme Court), it could be more than a decade until there is another Dem president/senate majority. I actually think it would be great if Democratic appointees only served a decade or so and retired under the next Democratic president so we can have new blood and progressive ideas/viewpoints on the court – no justice is irreplaceable, and a Justice Perez or Nathan would be as good as Sotomayor (and far preferable to her being replaced by a Fed Soc nut like Oldham, VanDyke or (James) Ho). Sotomayor might not want to retire because of her ego or desire to be the senior liberal for a bit, but with a 6-3 majority, the most important thing she can do is prevent it from getting worse. I remember RBG refusing to retire because she didn’t think Obama could replace anyone as “good” as her, which is probably the most arrogant thing a Supreme Court Justice has ever said – did she really think she was the smartest/most liberal person in a nation of 300+ million? That delusion was truly astounding (and in my opinion, what happens when someone is on the Supreme Court too long and lets it get to her head).


    • @Hank
      ” I remember RBG refusing to retire because she didn’t think Obama could replace anyone as “good” as her…”

      This is demonstrably false.
      That’s not what she said or meant.
      She was talking about her possible replacement WITH the senate rules at the time. Her emphasis was on the mechanics of confirmation, not on the pedigree of her replacement.
      RBG probably deserves much criticism for her obstinacy but none for something she didn’t say.


      • Her literal statement was “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

        This was in the summer of 2014, back when the Dems still held the Senate majority – sure, she may have claimed to be talking about Senate rules, but the same rules were in place when Obama got Sotomayor (a Justice without RBG’s blind spots on American Indian law, as just one example) with fewer than 60 Democratic votes. I’ll give RBG deference where it’s due, but I’m not just going to accept her claims at face value when they don’t make any sense.

        I hope Sotomayor doesn’t have the same ego RBG has and learns from this example – if Thomas wants to risk having to leave the court under a Democratic administration (and he was briefly hospitalized earlier this year), then more power to him. Sotomayor should be smarter than that.


  8. And of course they’ll wait for next Congress on Bloomekatz – there’s no reason to eat up the extra floor time with a discharge vote when they can just vote her out of committee next year. Portman already did not return a blue slip for her, so there’s nothing Vance can do to make her more “controversial” (and he’ll have less influence than Portman does now both because of the actual Democratic majority and because he’s a first-term senator).


    • You guys are too optimistic i dont see there being any vote on judges until next congress, they are that lazy and incompetent, i will be happy to be proved wrong. Why boast of getting to 100 if you cant commit to it? its shameful that some nominees have been waiting for close to a year to get a vote, the least he can do is confirm the NY district judges

      Liked by 1 person

  9. Agree with you on Bloomekatz Hank.
    The fact she’s deadlocked already due to Portman not returning his blue slip on her already makes her “controversial.”
    There won’t be any harm in waiting until we have the outright majority to confirm her.


    • Glad we’re getting new nominees this week, and Almadani is a good pick, as is Marian Gaston given her PD background. The other nominees seem like your standard ex-AUSA turned magistrate or state court judges – pretty par for the course in terms of what we’ve gotten out of NJ and Feinstein’s CA recommendations.

      Hopefully they’re taking longer on appellate nominees because they’re vetting more liberal names with the 51-seat majority, but I wouldn’t hold my breath. It really shouldn’t be taking so long to fill the CA1 and CA4 vacancies in particular.


      • Here’s my more detailed response to the new nominees;

        1. Mónica Ramírez Almadani – Absolute A+. I have spoken about her in depth on previous post on this blog so I won’t repeat. The only bad thing about this nomination is that it wasn’t made a long time ago & that it’s for a district court instead of for a circuit court vacancy.

        2. Matthew P. Brookman (born c. 1968) – Magistrate Judge, former United States Attorney, Chief of the Office’s Drug and Violent Crime Unit and Lead Organized Crime and Drug Enforcement Task Force Attorney & an adjunct professor at the University of Evansville. This is definitely a red state type of pick we get when blue slips are still honored. I would be more ok with this pick if it was part of a package del so let’s see the other 2 nominees for district court vacancies &^ more importantly the pick for the 7th… D+

        3. Wesley Hsu (born c. 1971) – A US Attorney that specializes in cybercrimes. This is a definite let down from all the younger, more progressive possibilities from the district. I know his parents were hit by a drunk driver when he was younger & that is the reason he wanted to get into la so I’m sure he is a good person, but we shouldn’t still be getting older nominees from blue states that aren’t even all that progressive… C+

        4. Marian Gaston (born c. 1971) – Another older state court judge for California. At least she is a fomer federal defender. She also worked to prosecute violent predators… B-

        5. Robert Kirsch – A 56-year-old former federal prosecutor & US Attorney in a blue state. You have got to be kidding me… D

        6. Michael E. Farbiarz – Another Assistant U.S. Attorney. At least he prosecuted terrorist. I couldn’t find his age but from the pictures he looks to be in his late 50’s… C


  10. Bummer that it’s only 6 district nominees, but I will take what we get haha. If nothing else it will mean new articles!

    Also, a nominee for Indiana is interesting. Hopefully this one has home state support too and so we can actually get the seat filled.


  11. @dequan

    I want Biden to nominate and the senate to confirm a young POC like Brad Garcia on that Supreme Court so bad just to fuck with the GOP and show them we can play the game like them.

    So they’ll remember each time they’re in power and escalate, we’ll be taking notes and doing the same when Dems retake power.

    I want Clarence Thomas to see his fellow Judge be years younger than he was when he was confirmed at 43 and not be able to say jack.


    • If nothing else, once all of these judges get confirmed, California will go from having 16 judicial vacancies at the start of Biden’s term to none, New Jersey’s judicial vacancies will go from six to zero and New York’s will also go from double digits to zero.
      That matters, it really does.
      People who have had cases put on hold can finally start to have them heard again.


  12. Just making my C-Span rounds and noticed that Alex Padilla was sworn in today to finish the 13 days left in Kamala Harris’s original term.
    He was on the November ballot for two concurrent elections. His full 6-year term starts in January.


  13. New York Court of Appeals

    Friday (12/23) is D-Day for Hochul to make her choice at long last. But I am betting on her making it tomorrow (Thursday). Unless it’s a truly bad pick and she wants to dump the news on the Friday before Christmas to avoid the “backlash.”
    This should be such an easy choice, but of course, NO Dem ANYWHERE has ANY urgency when it comes to ANY court.
    It seems like the betting market has the elderly lady, Edwina Richardson-Mendelson, as the front runner. If this is so, this might be announced on Thursday.
    If it’s any of the other elderlies, or Anthony Cannataro, it’ll be a Friday news dump.

    Between the bad Biden batch today and Hochul impending bad choice, I’m realizing that life would be so much easier as a conservative.


  14. If true, there goes your hope of a judicial voterama. A fine example that a one-off deal last year is just that, a one-off deal:


  15. All I’ll say on the New Jersey nominees is that makes me really nervous if Joseph A. Greenaway decides to take senior status.
    That is where someone will have to tell Biden to put his foot down and make clear the nominee has to be a heck of a lot better then most of the stuff we’ve seen from New Jersey so far.


  16. The issue is menendez is just a crooked politician, he is clearly sleazy and involved in alot of backroom deals that’s just the way it is, if its just one or two seats on the district court i would be fine with it, but in no way should they have any final say so on appellate nominees.
    The NJ batch have been the worst of the blue states.
    You can even argue stephen locher of iowa is not as bad as some of the nominees just nominated here.
    Anyways look like i was right, the lazy clowns wont be passing the 100 judicial confirmation mark, they haven’t even gotten the omnibus bill through, so it seems like February is the earliest we will see any new judges confirmed. absolute clowns.
    Just for reference does any know the longest period of time the GOP senate during trumps term went without confirm a judicial nominee?
    This guys aren’t serious.


  17. Sounds like a deal on the Omnibus has been reach and final passage should be this afternoon/early tonight.

    No clue on if they will try and knock out some judges after that before adjourning or if they will simply call it a year. Perhaps there are a few that they can work out a deal on. There are a lot of different possibilities.

    Even if there are zero votes, this omnibus is still a good deal, so I’m glad the Democrats are getting it done while it’s still a possibility.


    • I think the only ones that could possibly be rolled into a UC agreement today would be the handful who received real Republican votes in committee, 15 or 16 votes total. That would be Ballou, Walker, Lawless and Jenkins. I don’t see anyone who came out 12-10 or were tied making it before end of this Congress. Certainly no circuit nominees.


      • Thanks for compiling that. That would be fine if it’s just those four honestly, if nothing else it frees up time in January/February for others. Perhaps they would send some combo of those four straight to the floor for final confirmation like they did with some of the nominees two weeks ago, or better yet just hold voice votes for them.


  18. It’s like these nominators just don’t care. It’s such a painful political mismatch for Dem-voters who care about courts:

    “LaSalle is one of the most conservative judges in the appellate courts, frequently dissenting from majority opinions that reversed criminal defendants’ convictions, even in cases where other judges found that the police overstepped their authority. In one particularly notable case, four out of five judges reversed a man’s burglary conviction after ruling that the police lacked probable cause when they first arrested him. LaSalle was the only judge to disagree.”

    He’s just another DiFiore. I really hope that Brad Hoylman, the chair of NY senate’s SJC block this travesty.


    • Yes, LaSalle is total trash and a horrible pick – especially when there are not the same limitations on NY court of appeals nominations as there are on federal picks. I’m not surprised that Hochul went for a tough-on-crime judge given that centrist Dems are blaming their underperformance in the midterms on crime. That being said, maybe Hochul’s own underperformance in the midterms against Zeldin (she won by less than Whitmer did in Michigan or Shapiro did in Pennsylvania) means Dems in the state senate are more willing to stand up to her and reject this disaster of a pick.

      I wouldn’t bet on it since the NY state senate has never rejected a nominee, but launching a full-on blitz against LaSalle would be a better use of progressive energy than pretty much anything else they can do right now. The campaign against LaSalle should be like Stop Singas, but on a whole other level. A campaign to paint him as too tough-on-crime might backfire and get LaSalle Republican votes, so I’d argue for the message of any anti-LaSalle campaign to be that New York’s first woman governor lied in claiming that the NY court of appeals will protect reproductive rights and then putting this hack on the courts.


  19. The New York situation is incredibly ridiculous. I have no idea why Democrats do that this to themselves in solid blue states

    Hochul just won by about the same margin as Brian Kemp and Greg Abbott but you’d never see them select a Democrat former public defender judge to the state’s highest court. Just insane.


  20. Those Biden nominees aren’t exciting but one is a solid red state nominee and the rest are for two solidly blue states with a history of very meh nominees thanks to their senators over the last two years, are they bad or just more of the same for a district court level?

    I mean, the only plus I can say with those is unless the GOP overturns the blueslip rule, these people, especially older ones, will just be replaced with other dem judges in the future…some sooner than olders with how old a few are.


    • @Mike
      “are they bad or just more of the same for a district court level?”
      Do you think it’s more of the same that one of the blue state nominees is an actual Republican? Not a part of a deal with red state senators or just to get the nominee through a 50-50 senate or a nominee recommended with a gun to your head. No, that’s the best they would find in the entire state. You tell me if that’s bad or just more of the same.

      It’s been a crappy week for the courts.


      • @Zack Jones

        Yea it will be great to get to the point where California, New York, New Jersey (And I would add Washington which both districts will be completely Obama & Biden judges) will have zero vacancies. And as to your second post, The New York Democrats have a super majority & most definitely should put their foot down & vote this nominee down. Unfortunately with him being Hispanic, I doubt they want to be the party to vote down the first potential Latino chief justice, therefore he likely will be confirmed & comfortably. Shame on Hocul.


        I usually wait until the nominees have their SJC hearing to post pictures. Getting pictures before isn’t the problem. The issue is Wikipedia has strict licensing rules so when I get the pictures from a government site such as the SJC, I don’t have to apply for a license, which is difficult.


        I totally agree. New York progressives should launch an all-out assault & campaign against any senator to confirm this nominee.


        I’m fine with a red state district court nominee (Unless Durbin reverses on blue slips) being older & blah. I’m ok with the two California nominees even though there were younger possibilities. I’m even ok with the Captain Phillips prosecutor. But putting a certified Republican on the district courts in a blue state is completely unacceptable. I suspect Menedez knows he is up for re-election in 2024 & is trying to play favor with moderate Republicans which is a horrible strategy.


  21. Sadly not surprised at Hochul’s pick, considering the nominating commission stacked the deck to start with and because of the belief that crime cost Democrats in their congressional races and made Hochul’s closer then it should have been.
    This is where NY State Senate Democrats need to put their foot down and say no to Lasalle.
    They have a supermajority and if it’s made clear to her the overwhelming voting will be no, that will be that and we can start anew as we should.


  22. On LaSalle being the first Hispanic judge, NY progressives should get AOC to publicly oppose him (and also give her evidence of how his record on the appellate division has hurt working class Hispanics who are in unions or needed abortions). New York’s most prominent Latina (and one who actually advocates for everyday Latinos) forcefully coming out against LaSalle should give progressive state senators cover for voting no on him. I’m still fully aware that it’s a long shot, but at least there is a shot here.

    Liked by 1 person

  23. Looks like the pessimists on schumer were right, they are just that lazy at the end of the day, the prefer vacations to judicial appointments. what i don’t get is why would schumer say he wants to pass the 100 judges mark without following through? Just absolute malpractice. The only bright spot is holding the senate.


    • Yup, I definitely was wrong. I thought for sure Schumer would do the bare minimum & get to 100 (And that’s with the number currently at 97 even though it’s really 94). But instead they chose to leave town now to start their one month vacation.

      Since the midterms when voters defied all odds & kept Democrats in power, here is what we have seen so far in terms of the judiciary;

      1. A cancelled SJC executive meeting.

      2. A 2023 senate calendar that includes basically the months of January & August off to go on top of the normal recess plus virtually all Mondays off.

      3. A new batch of nominees that includes a majority in their mid 50’s & one out right Republican in a blue state.

      4. Governor Hocul choosing a conservative for chief Justice.

      5. No vote-a-rama.

      6. Chairman Durbin reaffirming his support to keep blue slips in play.

      I swear I would not vote Democrat out of protest of the Republicans weren’t so much worse. It’s sad


    • My guess is that Schumer maybe thought the omnibus would be done Wednesday so he could confirm judges on Thursday (and I believe his comments were before the snowstorm in half the country made senators more antsy to leave than usual, though at this point the snow’s already started). Broken promises are also hardly unusual, and I doubt anybody but the folks on this site and the interests groups were even aware of his comment about confirming 100 judges.

      Luckily it doesn’t make much of a difference if they confirm judges now or in January, and I’m willing to wait on judges in exchange for getting some legislation (electoral count act, same-sex marriage, pregnant women’s rights) done during this period.

      Unless things dramatically change in the new Senate though, folks on this board need to wake up and realize that Biden’s probably not going to surpass Trump in judicial appointments (though for appellate judges, that may be because Dem appointees don’t go senior and there are fewer vacancies to fill).

      My question is what actually changes with 51 senators beyond the true majorities on the committees? Biden didn’t really have that many nominees deadlock, so having a true majority solves some problems but not everything – does Schumer get more control/leeway in scheduling votes? Can Durbin schedule more SJC hearings since they won’t need Republicans for quorum (not 100% sure if that’s the case, so someone please confirm – not like Durbin will do so anyways, but still). If not, I think we’ll hear a lot of the complaints people have already raised again and again for the next two years.


  24. @aangren

    I think there are a few differences between 50 & 51 besides the obvious one as you already mentioned with no dead locks. One is there is no longer a threat of a SJC executive meeting boycott. Taking that off the table now gives Durbin more leeway to do things progressives have been pushing him to do but he hasn’t such as eliminate blue slips, schedule more meetings & schedule more nominees per hearing.

    A second benefit is Biden can now play hardball on numerous fronts. He can nominate more liberal nominees, can push harder for better nominees in red states for district courts now.

    Now that I answered your question, let me answer a question you didn’t answer. Will the Democrats use their expanded power & do any of the things I mentioned above with 51 senators? NOPE


  25. It will be easier to schedule votes and confirm judicial nominees without worrying about a Democratic senator missing or having to worry that if we don’t play nice with Republicans they can deadlock nominees or not show up at hearings out of spite thus gumming up the works.
    As for what Durbin will do with the new majority he’ll have, I’ll wait and see before tearing him and Schumer to shreds.
    I can tell you from what is happening in my neck of the woods that it’s understandable many folks want to get out of D.C. before the worst of the storm arrives.
    I would have liked to see more judges confirmed before they left but it is what it is.
    What I really want to see in the next few weeks is more Clinton/Obama judges who can take senior status doing so in order for new nominees to be named, nominees that can be liberal as can be without fear of deadlocked votes.
    Just have to wait and see.


    • Agreed Zack. That will be the biggest factor in determining Bidens success.

      What I really want to see is ultra liberal picks for the first, fourth, and especially the fifth circuit openings. I’d give some deference to the Indians senators just as a courtesy for working well on Pryor, but I’d go out of my way to ignore Cruz.

      I do think Blue Slips will stay around, but Biden has a much stronger hand to play now and hopefully will be able to play more hardball.


  26. I’m going to be looking at Manchin to see how he votes on judicial nominees next year.. if its possible where he can vote no/present while not endangering the nominee (as a campaign tactic for reelection), I would not be opposed to it


  27. Well, the senate is done for 2022…Pro forma sessions next week, and they meet on Jan 3 just to swear in new members..

    Thus no meaningful action on judges until it’s late in the NFL playoff season


  28. The Democrats that have come out against this nominee are from the progressive part of the NY State Senate.
    Have to see what the more moderate/centrist types think but I know many of them weren’t happy with what the Court Of Appeals did with restricting so I can see them saying no here as well.
    Here’s hoping on that.


    • I agree that it’ll take more than only the lefty/DSA-affiliated state senators to kill this nomination, but the speed with which they condemned it is encouraging. Unions are also not pleased with the nominee, which is also promising:

      And I think Republicans would be smart from a policy perspective to back LaSalle, but politically they’d be better off if Hochul became the first governor ever (or at least in recent in history) to have her nominee rejected. It would add to the reputation for incompetence Hochul is building after her bad midterm showing, and this is supposed to be her honeymoon period – if they can get her off to a rocky start now, her popularity will probably decline further as her term goes on.


      • I also think this is Hochul’s rationale for picking LaSalle – it’s just a boneheaded one. The average voter is not watching court nominations (and probably doesn’t even know what the NY Court of Appeals is) – the folks who pay attention are folks like us with niche interests and maybe some lawyers. She’s only going to anger her base without getting credit for being “tough on crime” with your average moderate voter. What’s she going to do, run an ad on how LaSalle always rules against criminal defendants on appeal?

        I think a swing right on crime is stupid on the merits, but she could’ve pushed for legislative or policy changes that would more directly show how she herself is responding to concerns about crime. All this whole fiasco tells me is that Hochul is bad at politics (which was obvious from her midterm campaign already).


      • I don’t follow this logic, I’m sorry.
        How many Republicans in 2026 will say: “you know what, she nominated a tough on crime judge, so I am going to vote against the tough on crime guy from my own party and vote for this Dem.” Not happening.
        She’s bad at politics. If this nomination is confirmed I will never vote for her again.


      • I agree Hank. This will only anger her own voters and won’t win her any independents.

        The easy solution would’ve been to immediately and quietly nominate a liberal or at least mainstream D judge and then make a big public but meaningless push to paint herself as “tough on crime”


  29. I saw that but compared to statements he’s done on other nominees, this isn’t exactly a ringing endorsement.
    Should be noted that if all Senate Republicans vote no, Hochul can only lose ten Democrats and so far she’s lost 7.
    Three more and Lasalle’s done.
    I called my State Senator tonight and left a message reminding him of the fact that he only won by 10 votes and that moderates/progressives alike didn’t vote to see judges like this be nominated to our state’s top court.
    If he’s smart, he’ll be a no vote on this.


  30. Now when 2022 is over, it’s time for a resume, and I have mixed feelings, especially in comparison to 2021, there was no shift in numbers to rebalance the courts, although there are absolutely positive results in diversity, in 2021 9 of 11 circuit court seats have been open, and with the two inherited seats of Flaum and Torruella, as well as the Hall seat, there was progress, while in 2022, there was none, just 2 of the 17 circuit court seats were open (both in DC), while all the other ones were just filled in exchange with another Democratic presidents’ appointee. And Stark was confirmed before O’Malley left. Only White was appointed by a Republican President after a deal, and hence there was no effect in numbers of rebalance. The same is KBJ’s appointment at SCOTUS, though an urgently needed step. I also think, that in 2022 the WH came over on all levels with less controversial candiated, maybe because of the high number of vacancies, they want to get as much as possible over the finishing line. That’s an explanation for me, why some of the district court nominees, who have been nominated in December 2021 and January 2022, have not been confirmed yet, as well as Ho and Vera. Most of the district court nominees, I know it were few, who came forward after KBJ’s confimation, are already serving, before WH became active in July and August.
    Of the nine really open appeals court vacancies, who would have been able to shift the power at least a bit, have not been pushed. That could be done in 2023, but as I said, that is the perspective of 2022, after holding the I’m also curious, if we can expect more candidates like in 2021 again.


    • I’ve posted multiple times on here that while Biden’s judges are needed, especially for the diversity and renewal they bring to the bench, they will not be able to shift the ideological balances on many courts. Still, many in here are convinced Biden will get the 14 circuit nominees he needs to overtake Trump.
      They’ll be very few ideological shifts if Biden is mostly replacing liberal or Dem-appointed judges. And they’ll be NO shifts on the district courts with blue slips still in force.
      So, what do we have?
      Well, as I said above, the professional and background diversity of Biden judges is wondrous to behold. And younger judges replacing older ones, even if their philosophy is more or less the same, is something.

      Still, if over the next two years we get more batches like Biden’s latest, we’ll actually be going in reverse in trying to shift the balance of the courts. But I don’t think you are ready to talk about this yet…


      • @Gavi

        While it is true that if Biden gets the additional 14 circuit court seats to become vacant & filled before the end of his term to surpass Trump’s 54, most will be Democrat nominated judges, I think it’s still important to do so. Without circuit court blue slips plus the long awaited Democrat Party focus on the judiciary, it is most likely Biden’s replacement will be to the left of the retiring judge in most cases. Not to mention much younger.

        I know I & others have complained about J Childs, Florence Pan & a few other picks, but even with those bad picks, Biden has simply been the best on judges out of all the Democrat presidents since FDR. And now with 51 Democrats, I think it’s likely to remain the same or even get better over the next two years (Of course not hoping for more batches like the one we saw earlier this week.

        But I’ll repeat two things I’ve said before. First, the timing of the retirements is extremely important. We need the judges to announce retirement by the end of next year to ensure Biden will replace them. Any retirements announced in 2024 risk the replacement announcement happening in the Summer when Manchin & Sinema will be in the jest of their re-elections & might not be as willing to vote for more liberal nominees. And second, at the end of the day it will take three consecutive Democrat terms in order to have any real chance & getting the judiciary back into progressive majorities. Matching 4 tears of Trump for 4 years of Biden followed by 4 years of another Republican president simply don’t do it.


  31. Very very disappointed to see Tish James endorsing Lasalle’s nomination. I understand why the Lt. Gov. does it; he’s elected on Hochul’s ticket. But James is elected in her own right. Maybe she feels that statewide dems need to stick together, but she’s considered a governor-in-waiting, it would make more sense for her to distant herself from an unpopular governor.


  32. Tish James is facing issues of her own in regards to not dealing with a staffer who was facing sexual harassment issues in a manner that was far different then how she dealt with Cuomo (pushing charges etc.) so it’s possible she doesn’t want to rock the boat here by coming out against Hochul’s nominee.


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