Judge Shane “Kato” Crews is the third magistrate judge nominated by President Biden to the federal bench in Colorado, after colleagues Nina Wang and Gordon Gallagher.
Background
A native of Pueblo in South Colorado, Crews graduated in 1997 from the University of Northern Colorado and then received a J.D. from the University of Arizona School of Law in 2000.
After graduating, Crews spent two years at the National Labor Relations Board and then joined Rothberger Johnson & Lyons LLP in 2001. In 2011, he shifted to be a name partner at Mastin Hoffman & Crews LLC and then moved to Hoffman Crews Nies Waggener & Foster LLP in 2013.
In 2018, Crews was appointed to be a U.S. Magistrate Judge and has served as such since.
History of the Seat
Crews has been nominated for a vacancy on the U.S. District Court for the District of Colorado. This seat will open on June 20, 2023 when Judge Raymond Moore takes senior status. Crews was previously recommended by Colorado Senators Michael Bennet and John Hickenlooper to replace Judge William Martinez, but fellow magistrate judge Gordon Gallagher was chosen instead. Crews was then nominated to replace Moore.
Legal Experience
While Crews has shifted positions over the course of his career, he has worked on civil litigation in all of those positions, including in labor law, business law, and real estate. Among the suits he handled in private practice, Crews was part of the legal team defending Pizza Hut against an allegation of violations of the Fair Labor Standards Act. See Smith v. Pizza Hut, Inc., 694 F. Supp. 2d 1227 (D. Colo. 2010).
Notably, Crews represented the Colorado State University System in defending against a lawsuit brought by Rodney Smith, a police officer who alleged a hostile work environment as a result of his race. See Smith v. Bd. of Gov. of the Colorado State Univ. Sys., Civil Action No. 15-cv-00770-REB-KMT (D. Colo. 2017). Judge Robert Blackburn granted summary judgment in favor of Crews’ client, finding that the plaintiff failed to meet his burden to show that any harassment was sufficiently pervasive to constitute a hostile work environment and that animosity was racial rather than personal. See id.
Jurisprudence
Crews has served as a federal magistrate judge since his appointment in 2018. In this role, he presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues. Among the cases that he presided over, Crews denied summary judgment in favor of the defendant in a slip and fall case at a Dollar Tree retail store. See Oliver v. Dollar Tree Stores, Inc., Civil Action No. 1:21-cv-3443-SKC (2022). Crews found that material disputes of fact remained about the actions of Dollar Tree employees regarding obstructions in the aisle where the plaintiff fell. See id.
Writings and Statements
In 2016, Crews was among 16 attorneys and law students who were interviewed by the Colorado Bar on diversity, inclusion, and bias in the legal community. For his part, Crews noted that he strove throughout his life to work harder and exceed expectations in a desire to overcome any “unconscious” bias on the part of others, noting:
“My experience with implicit bias has not been a story of suffering, rejection, or hurt. Rather, I have found empowerment and positive results from pushing myself to outperform biased expectations.”
Overall Assessment
As he himself describes it, Crews has lived a “charmed” life, rising at a young age (in his early 40s) to be a federal magistrate judge. He is now poised for confirmation to the federal bench, with little in his record that should cause him delay.
The Vetting Room 
This is my take on what was discussed yesterday.
It’s not wrong to say the new chief of staff and WH counsel aren’t doing a stellar job on the pace of new nominees or that most of them haven’t been as liberal or progressive as many folks would like.
Also that sans the 5th Circuit (I still believe the issue is finding someone who wants to put up with such a toxic place) there is no excuse to not have vacancies for the other Circuit court seats by now.
That is fair criticism.
Problem is a couple of folks here make absurd statements such as Biden is a coward or that he’s the worst President since Carter and thus make valid statements about what is going on seem absurd as well.
When Rachel Bloomekatz and Anthony Johnstone are confirmed, there will have been five Circuit court nominees confirmed over the objections of Republican senators, which wouldn’t been happening if Biden/Durbin were the cowards one poster keeps insisting they are.
Also, with all due respect, it’s laughable to see some parts of the progressive wing (especially parts of the Bernie/AOC wing) complaining about the courts when in 2016 and 2000 among others years, they made clear that if a candidate didn’t meet their purity test or inspire them, they weren’t going to turn out or vote for people like Stein/Nader despite other progressives/centrists screaming about the courts.
Don’t do that then complain you aren’t being listened to.
Bottom line, one doesn’t have to ra ra for Biden/Durbin etc. but a couple of posters have been posting stuff that is straight up garbage and it overshadows everything else.
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Completely agree.
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IMO Zack the issue is definitely not that and never will be for any lifetime appointment. The hold-up is probably either due to vetting or negotiations (or lack there of) between the WH and Cornyn & Cruz. Louisiana finally got their 1st District Court Nominee, so anything is possible.
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Absolutely right, some folks was and will always be dissatisfied whatever Biden, Schumer and Durbin do. No word that since February 3 circuit and 18 district judges have been confirmed, they turn their heads to the lack of hearings and executive meetings, and demanding the resignation of Senator Feinstein, while there are still more than 20 nominees waiting for floor votes, and more can be voted out every week, when they are complete again. I’m also not happy that everything is proceeding very slow, but the negative attitude of some people will likely cause a gastric ulcer, while retrospects of what might have happened when a decision was made different, are fruitless. I assume, that the senate democrats aren’t that stupid, that they won’t react, when there is no further cooperation from the GOP.
A final result of Biden’s term we see at the end of it, not these are just snapshots.
I can’t believe that the Democratic Party wants to have an entry in the history books, like this: ‘They started with record confirmations in the first two years, but then in continuing in honoring the blue slips against bad faith Republicans just confirmed one nominee in a red state every three months in the last 18 months.’ or so.
In the moment the number of senior status announcements is low, and in March nobody will leave the bench as it looks at the moment, maybe that has something to with the slow speed, which makes me also not happy, another factor might be that the acting people want to reduce the backlog on the floor and hence slowed down hearing slots – for me it’s better to bring some of these waiting for 18 months instead of those who are now waiting in the committee, first nominted in July 2022 and last in January 2023.
Gavi has asked, if the time of Dale Ho etc. is already over yesterday, and yes, it’s over since those, who were nominted in Januray 2022, where some are already waiting, then came KBJ, and all the following ones were far less progressive than those in 2021, they all have been confirmed, there are just Hernan Vera, Dale Ho, Adrienne Jennings Noti and Kenly Kato from 2021, and Nancy Abudu, Natasha Merle, Tiffany Cartwright and Nusrat Chohudry from early 2022.
Now I don’t believe, that the administration still has the energy to search such people, they have turned to more moderate candidates after KBJ got her SCOTUS confirmation and the quality of the WH Counsel has also not improved. Additionally, if there is some cooperation in red states, other candidates will be discussed.
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@Thomas
There’s a good couple dozen people that comment on this blog either frequently or from time to time. I bet this blog mirrors what goes on at The White House Counsel’s office. You have a group of people that for the most part, probably all want the same goal yet they have vastly different ways to reach that goal. Some want to preserve blue slips, some want to get rid of them. Some want young progressives, others want more experienced nominees even if that means older. Some wants to head senators off with list of nominees while others want to defer to senators. Some wants minimal consultation with Republican senators for circuit court seats while others go as far as to want to bring back blue slips for those seats.
I know this isn’t a liberal or conservative blog but for the most part I think most of the people that comment on here isn’t happy with the direction of the courts after 4 years of Trump. So for us to have so many differences even with that at the root of what we want, I can only imagine what goes in up in DC… Lol
@Joe
Yea at this point just use next week & knock out as many of the nominees that can garner the normal 3 GOP votes & be done with it. The Democrats will live to fight another day as they say. Just get through next week & hopefully the 2 weeks off will get everybody healthy & back to work. Even if well they can get 50 of the 51 that’s still should be enough to get the heavy hitters confirmed, particularly with McConnell possibly still out.
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I wonder where the line is between Bidens team just not working well with red state senators or the Republicans pulling their chains with unacceptable nominees as there are a shocking number of Trump district judges confirmed to blue states with blue slips turned in from the Dems.
I wonder if these are moderates judges, one liberal/one conservative deals or did Dems cave and decide no judge is worse than a right winger.
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I think some of the Obama package deals were bad & the Georgia deal was absolutely horrible. We got 4 district court nominees with one “Democrat” who voted for anti-gay & pro confederate flag amendments as a state court judge. Thank God Democrats tanked his nomination. The other three were your basic centrist. This is all after the Republican senators thwarted two young Black woman Obama wanted to nominate with their blue slips.
For the circuit court in the 11th we got one really good judge in Jill Pryor. Unfortunately since blue slips was still around for circuit court judges we got a Republican appointee in her 60’s who subsequently retired once Trump was in office. That deal was the first time I wanted blue slips gone.
I think under Biden, the Ohio & Pennsylvania deals were good package deals. For Ohio, we got a very liberal Black man in his 60’s, a left of center young Hispanic & a centrist third nominee. For Pennsylvania we got a very liberal extremely young Latina, two left of center Black woman in their low 50’s & a young Republican pick that seems to be just right of center.
If those two state’s are the model then I think blue slips can be saved (Despite me being totally against them for over a decade). If Republicans insist on the Georgia model then either blue slips need to go or history will continue to repeat itself. History has shown us that when one side works in good faith & plays by the rules, the other side wins. The 6-3 majority in the SCOTUS & weekly precedent over turning rulings by Trump conservative judges should be enough proof of that.
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I’ve wondered that myself Mike. My guess is that Biden’s team simply wasn’t focusing on red states much at all and now most GOP senators are either delaying or sending unsuitable candidates. I also suspect the WH is digging in it’s heels and not doing a bunch in the way of compromising.
I hope we get some movement soon on some package deals, particularly for the 5th and 7th circuit openings, because I think a lot of seats can be filled that way.
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In cases like Stephanie Davis (who is now on the 6th Circuit) Mary S. McElroy(whom would have been on the 1st if she was younger) Jill Otake among others, centrist/liberal jurists were allowed for district court seats in blue states while in PA, package deals were struck with 3 conservative/1 liberal nominee.
In other cases, no compromises were reached which is why NJ/NY/CA/ had so many vacancies by the end of Trump’s term.
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There was going to be a compromise in NY in late 2020 but Schumer/Gillibrand pulled the compromise to protest Amy Coney Barrett’s nomination to SCOTUS.
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Hopefully senator Cornyn was telling the truth & we will have some Texas nominees in the coming months. Judge Earl Yeakel Is a GW Bush judge that turned out to be fairly liberal, but I still would rather Biden replace him then a president Trump or DeSantis.
Thank goodness Schumer & Gillibrand pulled the compromise batch so that Biden was able to fill those seats. I also remember other states doing the same thing. Nevada comes to mind but there were others too. That’s why it’s so important to fill or at least get nominees for as many red seats as possible before the end of next January. I truly believe any of those seats that become vacant after that will not be filled in Biden’s first term.
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https://www.bloomberg.com/news/articles/2020-11-21/biden-considering-lisa-monaco-sally-yates-for-attorney-general?leadSource=uverify%20wall
Simple google search would rebut the troll frank saying sally yates was never being seriously considered but then again i re state he is a right wing troll not to be taken seriously.
The judicial vacancies in texas district courts are simply eye candy they will not be filled with anyone not a federalist society hack or a right wing charlatan. Its best not to even waste valuable time and capital working in good faith with charlatans like cruz.
It would be good to see gallagher confirmed today he has a very strong background and is a very good addition to the bench in colorado.
I am looking forward to vera, choudhury, merle and ho confirmation in particular ,even over circuit nominees because they have waited so long and are the top quality of biden nominees.
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I think Zack talked about how the focus should still be clearing out the blue state vacancies and when Biden has nothing left to fill moving his focus on purple and red states as the senate has nothing else to do.
I think that’s basically what’s been done, if the current nominees are confirmed there’s about 22 none red state vacancies left to nominate including circuit courts. I do expect all these vacancies to be filled by the end of this year.
By then, there’s no harm in trying though I think senators like Cruz and Scott will probably wait out the clock until the 24′ election and leave those seats empty in Texas and Florida.
My worst case scenario is still 180 confirmations within 3 years with 2024 confirmations being basically nothing. Considering the pot of gold in vacancies McConnell gave Trump on day 1, hitting 75% of his total confirmations is pretty good.
If Biden wins reelection then it’s a whole new ballgame especially if they can win some senate seats in 26′.
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Only Fetterman, Feinstein, Durbin & McConnell missed the Gallagher confirmation vote just now. Looks like we have a 49-48 Republican majority this week until Durbin returns next week to bring it back to a tie 49-49. I can’t wait for the Easter recess to be over so Democrats can go back to a majority & finally get those double digit SJC pending nominees voted to the floor.
Hopefully Schumer will at least send some cloture motions to the desk today or tomorrow. Next week is a full week & they should be able to knock out at least some good judges before the two week recess.
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I agree dequan if we can get brad garcia and one other circuit court judge it would be amazing and maybe two or three of the controversial district nominees that would be amazing.
If garcia, johnstone, vera, choudhury and merle are all confirmed heading into easter recess than thats a success.
Anything short of that is not something to get excited for at least how i see it.
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Hopefully they don’t “phone it in” next week & skip confirmations. It would be nice if they coordinate with VP Harris & have her available for 3 days next week. It should be the last time this year she’s needed this year. Other than any nominees Manchin or somebody else publicly says they will vote no on.
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Aren’t we at 48-48 in the Senate this week if Fetterman, Feinstein, Durbin, and McConnell are out?
Also, don’t count on Harris next week. She’s in Africa 3/26-4/1. I’m not saying she shouldn’t go, but that Schumer should have scheduled some of her time for this week.
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@rayspace
Uuuggghhh, I didn’t realize Harris was going to be in Africa next week. Well if McConnell will still be out, they can still confirm any nominees that Manchin is ok with. We’ll have to just hold out for the real heavy hitters until after Easter.
@Mitch
I agree on David Leibowitz. I think he is a good compromise nominee to fill all of the seats. I think the reason Trump never filled the last vacant Southern district of Florida seat was because Rubio demanded it went to him & for some reason the request wasn’t granted. I can’t imagine what could be so wrong that they would rather leave the seat vacant for Biden to fill but I would be surprised if it was something major. I know his uncle is a major Rubio donor but perhaps he funded another candidate or is a never Trumper but that is pure speculation on my part.
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@Dequan
According to one source, the Trump White House wanted Acting U.S. Attorney Michael Sherwin for the post. Leibowitz had donated to some Democrats over the years, which displeased the Trump Administation. Rubio and the Trump Administration reached a deadlock and now Biden is President.
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Ooohhh, that actually makes a package deal including him even more smarter now. If he’s the only Republican pick then I would say it would actually be stupid for Biden not to do it. If Rick Scott gets a pick too then that might not make it worth it.
The senate just recessed. No cloture motions sent. This Iraq bill is taking up days…smh
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On the Southern District of Florida Court, Rick Scott will defer to Marco Rubio. Not only because of seniority, but because Miami is Rubio’s home town and he’s passionate on appointments there.
On the Middle District of Florida Court, Rick Scott will have a lot more input.
It depends on which court has how many vacancies.
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As always I’m eagerly looking forward to Thursday’s cloture motions. At this point I’d prefer to just knock out as many district court nominees as we can (maybe 7-8) and working of confirming everyone else after Easter where we will once again have 5 straight weeks in session.
As it stands currently there are 6 circuit and 24 district nominees that need votes (including those 10 that SJC still needs to vote on). Theoretically this should take about 5 full weeks of voting, but we know there are other bills and nominees that will take up floor time as well.
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Yea…his confirmation still isn’t a sure thing but this isn’t the type of thing Schumer will say lightly.
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No surprise. Schumer was never one of the senators Delaney had to worry about. If Feinstein isn’t back next week, then he will have to wait at least three weeks to be voted to the floor. I think it would have served him better if his vote would have been swift. The more weeks his nomination sits, the better chance senators will look more into his record & waiver.
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Honestly, will be fine if that happens.
Sam Elliot should have been the nominee all along IMO.
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Let’s see Thurs if there is an executive business meeting planned for 3/30/23,,,,If there is, then probably means Durbin and Feinstein would be back….If no meeting scheduled, then Feinstein is one likely out…I would think Durbin would be back so as long as his COVID case was mild / asymptomatic.
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Let’s see if there is an Executive Business Meeting scheduled for 3/30/23…If there is, then Durbin and Feinstein will almost certainly be back….If not, then one or both likely out…I would think Durbin would be back so as long as his COVID case was mild / asymptomatic.
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If so he’s one of the lucky ones, because I know folks much younger than he is getting really sick (high fever, body aches, headaches, sore throat, & fatigue) from this latest variant (XBB1.5) spreading.
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Fox News leads off:
https://www.msn.com/en-us/news/politics/internet-shocked-at-biden-judicial-nominee-s-failure-to-answer-simple-question-on-legal-procedure/ar-AA18YYzo?rc=1&ocid=winp1taskbar&cvid=352ba0da20b041edd7d0a33728c1a4ee&ei=34
Expect the story to be picked up by others. Despite the anti-Bjelkengren hypocrisy in here, I think Crews is in fine company with her. Can’t wait for them to both be confirmed.
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Another Bjelkengren & Mathis embarrassing moment! Are they not being thoroughly prepped for their Senate confirmation hearing,
or are we just not getting the best & brightest here? The one thing all 3 of them have in common is that none were Federal Law Clerks.
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Andre Mathis didn’t have a similar Bjelkengren or Crews moment. He apologized for not properly paying for three speeding tickets, one in which he was going 6 miles over the speed limit. I completely agree with what Corey Booker said at his hearing but Mathis took the high road & apologized anyway.
He apologized to his home state senator who herself was stopped by the police within the previous couple of years for speeding & only didn’t receive a ticket because she flashed her congressional pin. If @Gavi wants an example of hypocrisy that would be the hearing to rewatch.
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Not sure what issue you had with Mathis (unless you are mentioning the speeding ticket which was not a legitimate attack), but as for the other two nominees, I agree that they are not the best nominees the Biden administration could be nominating. Your point about federal clerkships is a great one, I think we often take it for granted but it is a great experience for anyone who is being nominated to serve as a federal judge.
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There’s no anti-Bjelkengren hypocrisy here. If Crews didn’t know the article of the Constitution regarding how the branch of government he is applying for a position to serve on was formed, I would be saying just as loud he should not be confirmed. Then if he didn’t know the article of the constitution that established the branch of government for the person asking him the question or the person that nominated him, I would say he shouldn’t be confirmed just as loudly as well. If Bjelkengren didn’t remember the details of one of the millions of cases that have been tried in court since the inception of the Constitution, I would have some concern about her only being able to name six cases she worked on despite being asked to name ten, but ultimately I would be fine with seeing her confirmed. Two completely different things.
And any suggestion that the only reason somebody on this blog doesn’t want to see her confirmed is because she is a Black woman would be amongst the most ridiculous thing I’ve read on this blog ever. Especially since many on this blog including myself (A Black man) has repeatedly mentioned Black woman amongst some of the finest picks Biden has made (KBJ, Freeman, Abudu).
As a matter of fact, Bjelkengren is the first Black woman I’ve said shouldn’t be confirmed that was nominated by any Democrat EVER. I’ll list my Obama & Biden out right no votes I would have taken below (I didn’t follow the judiciary pre GW Bush);
Michael Boggs (White man)
Christine O’Hearn (White woman)
J. Childs (Black woman but I would have been perfectly fine to vote for her had she been nominated to the 4th circuit in her home state & not the DC Circuit, the second most important court in the land).
Florence Pan (AAPI woman. No to the DC circuit, yes to the DC district court).
Charllene Bjelkengren – No because in my 23 years of following the judiciary, she was the first nominee I have ever heard not be able to answer basic constitutional questions nominated by a Democrat. I’ve heard similar answers from Republican appointees & also stated they should not be confirmed.
Michael Delaney (White man)
Hypocrisy would be me acting one way for one person & a different way for another despite the situation being the same. As I said yesterday there are situations I would happily be a hypocrite. If the nominee not being confirmed would likely lead to the seat not being filled until after the next election or if the nominee was so progressive that they should be confirmed at all cost, those would be the two likely examples. Bjelkengren doesn’t fall into either category so I don’t think she should be confirmed in my opinion.
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Does anyone remember Matthew Peterson? He struggled with questions like that and he withdrew shortly after the hearing.
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Yea but there was one big difference between Matthew S. Petersen & Kato Crews (And even Charnelle Bjelkengren for that matter.) The latter two are at least sitting judges so even though they did bad in their hearings, at least they have performed in the role they are applying for in some sort of capacity. Petersen was never a judge on any level so him having a horrible hearing is only exacerbated by the fact he also never did the job in any role previously.
Now in Bjelkengren’s case, she did bad in the hearing but is a sitting judge. However in her case she couldn’t even list 10 cases when asked to so that adds to the argument against her versus Crews who senator Kennedy listed about a dozen cases in his line of questioning alone. Plus as I have said despite others having a different opinion, I think the questioning she couldn’t answer is more disqualifying than Crews in the first place. I can forgive not remembering all of the details of a case in a rapid fire hearing versus not knowing the fundamental structure for the job you are applying for.
@Mitch
Still no ABA rating for Wamble. I’m not sure what’s going on in respect to that.
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Looks like another vacancy on D.NJ is opening this fall.
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Oh Lord. Now we will hear from the crowd that advocates for nominating older judges… Lol
Vasquez is now the 7th judge to leave early in the past decade. The number still remains less than 3% so keep nominating under 50 judges Mr. President, please & thank you.
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I agree Dequan. Much overblown trend and to be honest it doesn’t bother me a bit given that he’s retiring under a WH/Senate that will nominate a replacement with a similar judicial philosophy. I commend him for 7 years of service to the judiciary.
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This is the risk with nominating younger judges. While the Democrats will have the chance to replace him and I know that’s what most people here care about, it is another data point showing that age is overrated when it comes to judicial nominations.
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As promised, here’s my standard copy of paste response:
Please assert the harm done when
1: presidents nominate younger judicial nominees
2: < 3% of that cohort resigns early
Thank you.
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Haaaaaaa… Gavi may I have permission to use your standard copy/paste response? Statistically speaking, 2 – 3 more judges will leave the bench early this year (Still would be less than 3%) so it would save me time if I can just use a standard reply the next few times… Lmao
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@Dequan
Go for it!
Judge John Vasquez’s over 7 years of service doesn’t get diminished or disparaged due to his resignation.
Since I’m apparently stingy with giving credit, let me give @Frank partial credit: Maybe in this one instance you’re right, since Vasquez will probably be replaced by a worse nominee, given that this is a NJ vacancy. But NJ’s terrible judicial nominating record cannot be blamed on the 30-something years olds I’d love to see on the courts.
I’ll take my chances, thank you very much.
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It most certainly is Frank! If it were up to me, 45 & older would be the ideal age to become an Article III Judge. This would require the nominees to have at least 20 years of experience practicing law. Forty & under is just too young and inexperienced IMO.
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I agree with you about Charllene Bjelkengren Dequan.
Yes there have been bad faith attacks (Freeman’s hearing was an utter joke) by Republicans but Kennedy’s question to Bjelkengren was basic legal stuff and she utterly failed at answering them.
To ignore that because Republicans did with their nominees isn’t a line I’m willing to cross.
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Exactly @ Zack Jones . It actually hurts me to not want to see a Black woman confirmed (Reminder for the first time ever by a Democrat) because I know how under represented they are in the judiciary, even still after Biden, who has done a phenomenal job increasing their numbers. I would actually go on the record to say she should not be confirmed but another Black woman should be named as her replacement.
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@Gavi: I already answered this question in the Sifan article, but I’ll repost it here in case you missed it.
When a judge resigns early, it creates judicial emergencies and leads to cases spending more and time in the legal system, which can often take years. Since the lower courts haven’t been expanded in several decades now (and this should be addressed ASAP), there is more of an importance on having plenty of judges on senior status (even if they are hearing only a few cases a year on average) to reduce the workload and lead to cases being resolved more quickly. High levels of early resignations don’t allow for this flexibility since it is simply a 1 for 1 tradeoff rather than a judge going to senior status in addition to gaining a new judge, who may not be confirmed for months or even years. Unlike old times, it takes much longer to confirm new nominees than it used to, since just about every nominee will need a roll call vote as opposed to a voice vote or unanimous consent, so any unnecessary vacancies aren’t good for the system.
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Some younger nominees, like Bloomekatz, are great and should be quickly confirmed. However, more often than not they are not the most qualified possible nominee and should gain more experience as a magistrate judge or be involved in the federal court system rather than the state court system.
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@Frank
“When a judge resigns early”
Who decides what/when is early? You? Perhaps you should lobby for a law that bans judges from resigning “early”?
“it creates judicial emergencies”
Judicial emergency is not a term of art that should be bandied about, but an actual statutory declaration.
How is the lack of judges due to no new judgeships created (a political/legislative issue) the concern of a judge who decides to resign outright?
How can <3%, or more accurately, <1% on a specific court, be seen as “high levels of early resignations?” And how does this “high level” of ~1% dramatically impact the workload of a court? By your measurement, then, you should also oppose the elevation of judges to another judicial post. Do you? More judges are elevated than resign outright.
Your Bloomekatz exception shows that this isn't a principled position, but rather just a personal preference dressed up with dubious statistics masquerading as sound policy. Someone else of your opinion (very few people, I hope) may argue that Bloomekatz isn't qualified because she's too young and statistically (3%!!!) will be likely to resign outright.
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Not sure why you are asking what “early” is, when that is simply resigning before being eligible to take senior status. My feeling is that whether 3% (higher when only district court judges) or 0.3% of judges are resigning early, it exacerbates the issue of having a justice system which does not produce fast resolutions, and is much too high for all of the reasons I’ve already stated. Not sure why you are putting words in my mouth regarding advocating for a law, when the simple solution is to appoint nominees which don’t typically leave the bench early. Younger nominees for circuit court seats aren’t as big of a deal now since there are fewer resignations there today, thus is why I have less of a issue with slightly younger nominees there (but they have to be exceptionally qualified and can’t be hacks). It’s not the judges faults that there aren’t enough seats for many of the courts, that falls on Congress and the president, but until it’s fixed measures need to be taken to make sure courts are filled to the max in terms of judges as much as possible.
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Early is a label you are putting on these resignations, that’s why I ask who decides what it is. Off the bench, if you need to work at a job for 25 years to get a pension, but you only work 10, is this “early” resignation only seen in relation to the pension that you’re giving up? Or is the resignation just that?
What’s this inseparable link in your mind between senior status and judicial service? Again, no one has to serve until they are qualified for this. Just has no one has to work at a job until they are qualified for the pension there.
Can you once and for all make a coherent argument on how 3% constitutes a major problem that’s having a serious and an ever exacerbating issue for the justice system?
“The simple solution is to appoint nominees which don’t typically leave the bench early.”
There’s no typical here. Nothing short of a president asking a prospective nominee to not leave the bench in a certain number of years would get you this result. And that discussion/request would be extremely improper. Is this like complaining about the rain? Something to kvetch about knowing well that there isn’t a “solution?
“Younger nominees for circuit court seats aren’t as big of a deal… I have less of a issue with slightly younger nominees there”
Again, this arbitrary and capricious carveout shows that this isn’t a principled position. Let’s tear it apart:
1: Since COA judgeships are higher in our judicial hierarchy, wouldn’t your standards be commensurately higher for those nominees? If your standard is youth is bad because of lack of experience, how are young COA judges going to review rulings by your old district court judges?
2: Younger CoA nominees need to be “exceptionally qualified” as opposed to just “qualified” old COA nominees? Or isn’t there just one standard of qualification?
The irony is you’re the ageist in this discussion. I concede that judicial nominees are typically qualified to serve on the bench, whatever their age. You are prejudice against younger ones, with a steadfast belief that only the old ones can be qualified.
Conspicuously missing from your response is my question about elevation, which happens more often and has the no-senior-status-judge result you bemoan. But I am sure that was an unintentional oversight, right?
Last week your argument rests on the subjective “immorality” of judges resigning to go make lots of money. This week it morphed into concerns for judicial workload.
What’ll it be next week, counselor?
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You made my point about younger judges. They haven’t generally had the diversity and level of experience with which older nominees have, but if they do then they should be the nominee. All nominees, even older ones should be exceptionally qualified. Even with elevations, a judge taking senior status at the circuit courts can assist with cases in senior status. The 3% is still a bit misleading, since several Obama nominees have already taken senior status and thus the court they were appointed to just got a new active judge in addition to the judge going to senior status much faster than if someone younger had been nominated originally.
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AGREED!
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AGREE!
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@Frank
Everything you said makes great sense but there are five words that isn’t true, “ High levels of early resignations”. There aren’t high levels, there are seven in the past decade. Less than 3%.
More men have walked on the Moon than have left the bench early in the past decade. It will happen again this year, probably two or three more times. There would still have been more people that walked on the Moon than early resignations in the last decade if three resigned tomorrow. The upside of appointing under 50 year olds far far FAR outweighs replacing the less than 3% that will leave early.
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I’ll take retirements now versus what Thomas Vanaskie and Chris Droney did under Trump and giving McConnell two flips he shouldn’t have had.
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Senator Bennett just tried to confirm a batch of Air Force nominees by voice vote. Senator Marshall AKA Mr. supposedly working in good faith to fill judicial vacancies in Kansas but still hasn’t turned in his blue slip for Jabari Wamble objected.
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Has the ABA given Wamble its rating yet? Fairly or not, the ball is in their court.
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I do not understand why they’ve wasted two days on Repealing AUMF Against Iraq votes.
Did they run out of judges that would’ve gotten votes from Collins and Murkowski or was this something promised to the GOP?
I haven’t heard anyone asking for this thing to be repealed as a political issue in years. I’m not against it, I’m just confused why they care now.
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Senators Kaine and Young have been working on it for years. Especially Kaine. But it’s legislation so it’s got a pretty open amendment process and that takes time unfortunately.
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I wish when it came to legislation like this, something that has bi-partisan support, they would do the vote starting Thursday morning. Then they can have a nonstop vote-a-rama Thursday through the weekend until their heart is contempt. Let’s see how many amendments they want to propose 2a on a Friday night. My guess is that’s exactly what they would have done if today was December 23rd instead of March 23rd. This will now take up all 2 days for this week plus the end of last week.
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Yeah and now Schumer has filed cloture on the bill itself and scheduled the cloture vote Monday night. Presumably passage Tuesday.
No judges filed today.
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The senate stands adjourned and without any cloture motions filed on nominees, and no SJC meeting next Thursday, likely no movement on judges until after Easter break
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Are there any more bills that the senate is scheduled to vote on in the immediate future? I’m hoping the city of DC doesn’t pass any more bills any time soon because I believe I read the senate must vote on those & Schumer can’t stop it.
Next week looks like it will be a wash for judges. I’m hoping after the Easter recess all of the senators (Or at least 50 out of 51) are well rested & ready to get back to work. Out of 5 weeks, if they can focus on judges for 4 of them, they could knock out all of the pending circuit & district court nominees on the senate floor today. Then the real fight over blue slips can begin.
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I don’t think there are any pending bills….There will be debt ceiling and budget but that’s probably not until late summer / fall.. With the GOP in control of House, certainly won’t be any meaningful legislation to consider (ie no voting rights bills, climate, minimum wage, etc )
If Feinstein isn’t back after Easter she should resign..Or at very least, resign from the SJC
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For those worried about younger judges resigning early, here are the numbers from the three previous presidents, GW Bush through Trump. These numbers only include circuit & district court confirmations, not SCOTUS or non-article 3 seats. I didn’t include anybody that left early due to death or if they were elevated to a higher judgeship. Recess appointments running out is not included (Ex. Charles W. Pickering).
GW Bush – 323 judges confirmed, 8 resigned.
Obama – 323 judges confirmed, 6 resigned.
Trump – 230 judges confirmed, so far1 has resigned due to disability.
In the past 22 years not counting Biden judges we have had 876 judges confirmed with 15 resigning. That comes out to 0.17%. So if you only use Obama judges it’s a little higher (Still only 3%) but using the previous three presidents, the numbers don’t even reach 1%.
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That one Trump judge took senior status I believe, so it doesn’t count in my opinion. If you take out circuit court confirmations and SCOTUS nominations, the numbers aren’t as pretty as the picture you are painting.
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Apologies, didn’t see your note about SCOTUS.
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Yea I left SCOTUS out. And yes the Trump judge would actually make the numbers better in my favor. I was giving you the benefit of the doubt since even though he’s “senior status”, he didn’t do so based on the rule of 85 so I was giving that one to you to help your numbers out slightly.
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Very true. I simply don’t think that it makes sense to look at Trump for this analysis since all of his nominees have been in service for just a few years.
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Ok, fair enough. Just counting GW Bush & Obama…
Total of 646 judges with 14 resignations. That comes out to .02%. That is a little higher but still less than 1%. I would argue the 99% that serve until the rule of 85 is more than worth that .02%. But of course, I agree with you on the point of them needing to be qualified. Out of the 5 Biden nominees I would vote no on, only Charnelle Bjelkengren was under 50 when nominated btw.
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@Frank
“Very true. I simply don’t think that it makes sense to look at Trump for this analysis since all of his nominees have been in service for just a few years.”
Good acknowledgment, now please address the underlying data helpfully put together by Dequan:
“In the past 22 years not counting Biden judges we have had 876 judges confirmed with 15 resigning. That comes out to 0.17%. So if you only use Obama judges it’s a little higher (Still only 3%) but using the previous three presidents, the numbers don’t even reach 1%.”
(Separately, I’m writing up my response to your reply of my earlier post.)
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To me, the thing that would worry me much more then how many (Or how few if you look at the data) judges resign early, is how many Democrat appointees leave the bench for whatever reason under a Republican president. A Democrat appointee resigning early while a Democrat president is in office does little damage. Of course, we have to waste time finding a new judge, time in the SJC & the floor but as long as they are replaced by a Democrat president then the damage is minimal.
An older judge appointed by a Democrat & leaving the bench (Voluntarily or otherwise) under a Republican president is much worse. I think that should be the main focus of anybody worrying about the judiciary taking a rightward turn.
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@Dequan
“A Democrat appointee resigning early while a Democrat president is in office does little damage.”
This is literally all that matters. And so what if the senate has to take the time to confirm their replacement? What else would they be doing? Spending hours confirming nominees to other useless posts like Chief Drum Major of the Consulate in Londonderry?
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Haaaaa… I know right Gavi. I think after the Iraq vote next week they got the Secretary of Baking Cookie next up to be confirmed. You wanna know the worst part? If that was a real position up for next week, one of the Republican senators we are suppose to believe will work in good faith to fill judicial vacancies in their state would still hold that nominee up & force a cloture & floor vote… Lol
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@Dequan you definitely did your math wrong. You’re off by a factor of 100.
15 out of 876 is 1.71%
14 out of 646 is 2.17%
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You’re off by a factor of 10 for the 15/876 calculation and off by a factor of 100 for the 14/646 calculation.
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Yea I wrote it correctly on another reply. I was rushing at work to type on the one you replied to but the others I wrote it orderly, 3% just counting Obama & slightly under 3% respectively for GW Bush through Obama. Unfortunately on the blog you can’t go back & edit so if you make a mistake on one post it remains until the end of time no matter how many times you write it correctly elsewhere… Lol
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Once upon a time (centuries ago in the 2000s), the 4th Circuit was considered the most stridently conservative court in the country. Then one by one, yes, with each new Dem appointee, that slowly changed to what that court is today.
Now to the 5th. Have we forgotten that courts can eventually flip, no matter how out of reach they seem to be right now? If one new appointee doesn’t immediately change the court, is it no longer worth it? Are we really that shortsighted?
We’ve heard the parade of amazingly bad takes (eg: no one wants to join this important appeals court because they’ll be dissenting too often), it’s high time we heard a nominee announced.
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I am of course one of the advocates for getting rid of blue slips completely. It pisses me off that we just had a SJC hearing Wednesday with only 3 nominees when both Scott Colom & Jabari Wamble weren’t at the hearing despite both being nominated before the three that were, simply because of blue slips. I honestly wouldn’t have watched the hearing if I wasn’t the person who post their profile pictures on Wikipedia, that’s how disgusted I was.
But I would be less disgusted if Biden treated circuit court vacancies equal to how Trump did. These should be easy lay ups. I just don’t believe he can’t find liberals who don’t want to be a circuit court judges, one step below the SCOTUS. Especially in Texas, the second most populous state that has only had one Democrat appointed circuit court judge in the past 25 years.
Republicans blocked two Hispanic men Clinton tried to nominate that would have been fantastic. Then they left two vacancies open under Obama that Trump ended up filling. I actually was partially thrilled initially the other month when Cornyn was going through the consultation process he & Cruz had with the administration. He said they were given three weeks to give names for consideration. Cornyn said they gave the administration ten names. But that was a year ago & still no nominee. What makes it worst is there was an election within the past year in which polls were showing Democrats could likely lose the senate for a good portion of that time.
It’s infuriating that the administration is taking a year to fill this seat, let alone over two years for the 10th vacancy. It’s a dereliction of duty that they don’t have names waiting in the pipeline for all circuit court seats in red states for judges who are eligible for senior status.
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Until there is an organization comparable to the FedSoc for the left (and the ACS doesn’t count), this will always be an issue for Democratic administrations. Having candidates ready for every single state and duty station before the seat is even open just isn’t feasible.
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I don’t see why it’s not feasible, particularly in a post blue slips for circuit court seats era. @Ethan has a fantastic list & he’s not even a lawyer. There’s 179 circuit court seats. About half are Republican appointees & and most non Trump appointed judges from that list are eligible for senior status today. We are 26 months into the administration. Not only is it feasible, but it’s a failure if they don’t have at least a working list for each of those seats.
And the ACS gave the administration a list 48 hours after the election was called for Biden. They didn’t make the list public but I’m sure there are some really good names from a group tan by a former US senator who sat on the SJC. Demand Justice, The People’s Parity Project & others gave them list as well. The administration has plenty of help.
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I remember getting shouted down in here when I mentioned what Cornyn said. I was told that you can never take him at his word, he was lying, Biden is excellent, Biden can do no wrong, etc. Sure, I’m exaggerating, but only a little. Anyway, I am pleased to see that the consensus has come around to agreeing with me that Cornyn, was in fact, being truthful. The way he laid out the timeline, step-by-step, was very convincing.
But, Dequan, can you see how this 5th Circuit business is an argument against the blue slip? This is a vacancy that doesn’t require a blue slip, but Biden still (mostly) operates like it does. Now times this by literally 10s. Biden is simply not the president that would benefit from abolishing it for district courts. Trump would be, or a more aggressive president who’s not so concerned with endless outreach like Biden.
And as bad as they both are, we can only partially blame this new WH Counsel and CoS because the 5th and 7th vacancies go way back.
—
Frank has a way of undermining his own arguments by trying to exclude legitimate examples that prove him wrong. Saying the ACS doesn’t count is yet another example. Biden didn’t need a Fed Soc to nominate Benjamin to the 4th or Wamble originally to the 10th. I don’t care about political patronage or nepotism, especially if the recipients are qualified on their own merit.
No matter how red a state is, there’s always a Democratic structure in the state that could help the WH come up with names. You don’t need a Fed Soc. Look at North Dakota!
Also, Bush did quite fine without over relying on Fed Soc the way Trump did.
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Yea I agree with you Gavi on Cornyn. I also never thought he was lying as everything he said seemed pretty probable. My issue wasn’t that he was lying but were the names he gave really good faithed nominees or people he knew Biden wouldn’t nominate just to delay the process while simultaneously saying he is consultations with the administration.
As for Biden not being the right president to get rid of blue slips under, I get your point. I would still argue getting rid of them because there’s a difference between having a president that will still try to work in good faith without blue slips versus what we have now. With blue slips, you can have senator Johnson take months to agree on a commission, then take months for that commission to give them recommendations, then take more months for Johnson to agree on some of those names to send to the president. Then after the administration takes months to pick one, vet & announce a nominee, then the SJC take a month to schedule a hearing, Johnson can simply say he’s refusing to turn in his blue slip the day before the hearing when the nominee had already flown to DC & checked into his hotel. And he can use any bs logic for refusing to turn in that blue slip.
And yea I caught that as well. @Frank is not counting organized liberal groups even when they are headed by former US senators that sat on the SJC. But as you said even if they didn’t have liberal groups to recommend names (Even though they do) they don’t need them. Most states have at least one Democrat congressman so that alone is enough with Andre Mathis being a perfect example.
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@Dequan
“were the names he gave really good faithed nominees or people he knew Biden wouldn’t nominate just to delay the process while simultaneously saying he is consultations with the administration.”
Absolutely. But let’s say there were 10 James Hos on that list. Why would the WH wait 6 months to reject them? That’s the sticking point. And we know that the list didn’t have 10 James Hos because when the WH finally responded to the senators, they indicated that they were ready to move forward on the list.
And then you have the district court vacancies that the WH didn’t reach out about. But as you’d argue, the WH had a blue state first strategy. My only pushback here is you can’t blame Republicans or blue slips for these prolonged vacancies if the WH isn’t even trying to fill them.
I went back to the hearing. Cornyn’s remarks starts exactly at the 9-minute mark:
https://www.judiciary.senate.gov/committee-activity/hearings/01/26/2023/executive-business-meeting
If this video link doesn’t work, the meeting is from January 26th. You can go directly on the website and scroll to it.
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I’ll be honest, if all 49 senators were working like Cornyn says he & Cruz did (And again I believe him), I wouldn’t be advocating ditching blue slips. My problem is I believe we have at least 10 of those 49 that’s not working in good faith. And those 10 represent far too many vacancies that I’m not willing to let remain vacant until president Trump or DeSantis fills them working alongside senate majority leader Mitch McConnell.
Now if I’m wrong & that number 10 is closer to 3, I would change my mind. But I think the number is much closer if not greater than 10 than 3. If that is true then it’s a simple question. Should we be willing to let the seats represented by those 10 or so senators only be filled by a Republican for a rule that was just ditched by Republicans in the last administration for circuit court seats? My answer to that is an emphatic no.
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If your side were to prevail, I’d feel a lot better about losing the blue slip if Biden actually takes advantage of it. Meaning, actually making nominations and not allowing GOP to cause prolonged delays. Otherwise, it would be a wasted opportunity that Trump/DeSantis would benefit from in 2025 and beyond.
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Yea I agree. But if Biden were to fail to capitalize after Durbin had the courage to ditch blue slips then it probably wouldn’t matter in either case. The seats wouldn’t get filled with or without blue slips & the Republicans would deserve the riches they got from filling all of those states with the next Republican president.
But in either scenario, with or without blue slips, the direction do the judiciary ultimately will hinder on if we have a Democrat or Republican president in 2025 – 2029. It will take two terms to truly undo the damage of McConnell’s blockade of Obama’s last two years & subsequent Trump 4 years.
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Agreed Gavi. And there are 2 Reagan and 4 GWB appointees on that court that could all conceivably leave the bench sometime this decade(plus some Clinton and Obama appointees), so there is potential for Biden to make an impact there particularly if he’s re elected.
As far as the current vacancy I can only guess that the WH hopes to use it as a bargaining chip to fill some of the district seats. I certainly don’t believe that no one is interested.
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I’m happy Biden has nominated Steph & Ayesha Curry to the council. Now can we get a nominee for the 4th, 5th & 7th please… Lol
(https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/24/president-biden-announces-key-appointments-to-boards-and-commissions-21/)
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Lol. I’ll take even just one circuit nominee by April 5. That way they can fill the next hearing date on May 3. Probably asking for the moon here though.
Sometimes I still think about last May/June when we got batches of 3 nominees two different times.
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I just finished watching a virtual discussion via zoom with judge arianna freeman of the 3rd circuit and judge wan of NY appellate courts it was hosted by Dickinson law. I was able to ask judge freeman a question about the current trend of federal judges leaving the bench early for more lucrative jobs with better pay and asked if she thinks it deters other wise good people who want to be judges, to shy away because of financial obligations.
Her response basically in summary was that she didn’t get into this for money , that she got into it because she loves the job and doesn’t see it as a way to make money.
She also said coming from a public background , i guess being a public defender , that the pay bump to a circuit judge is quite in her words ”adequate” in comparison to her previous roles and she was quite content.
She also made a further observation that she has although she has only been in her role as an circuit judge for about a year or less, that she is making the same salary as a judge who has been there for 30 years as her colleague despite her just being a starter and clearly lacking the experience of the older judges, which is unlike say in the corporate world where experience and time spent on the job usually results in higher pay grades.
It was a great panel and judge freeman is so kind and thoughtful.
I am also going to watch another panel today with judges bumatay, callahan , holly thomas of the ninth circuits and judge reyna of the federal circuit which is being hosted by pepperdine law review. i for one find these panel of judges discussions as very interesting.
I think there is another panel next week on one of the new biden district judges in new jersey too.
I truly find these forums very interesting.
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@aangren
Awesome, thanks for sharing. That’s truly an amazing experience to be able to interact with people we discuss on a daily basis. Sounds like she was being open in her answers too. Truly great stuff
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It was amazing to see her answer my question in real time. She seems truly dedicated to the job and i expect her to be on the bench God willingly, for several decades, she strikes me as someone who deeply cares about the issues and she even spoke about how the regular court staff who keep the circuit running where emotional during her swearing in because they had never seen a woman of color take the bench on that circuit prior to her.
It was an amazing panel and judge wan of NY appellate court was very thoughtful as well
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WOW… That just reaffirms why she is amongst one of my favorite Biden nominees as I mentioned the other day. I never thought about the aspect of her making the same amount of money on day 1 that another judge was making in year 30. But as she said, you really shouldn’t be doing the job if you’re trying to become filthy rich. She is doing it for the right reasons & I am happy to hear she shared that with you today.
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Thanks for sharing aangren. Freeman seems like a fantastic jurist.
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She’s a lovely woman, and definitely there for all the right reasons.
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The logical thing for Democrats to do is prune the low-hanging fruit. Some of the judicial nominees are not controversial and have some level of bipartisan support. They can be confirmed without much difficulty.
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@Dequan
I looked up the recent Kansas Appellate Court ruling regarding ballot harvesting and signature verification. It turns out that a three judge panel of the court made the ruling, not the court as a whole. Jacy Hurst was not on the panel.
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Ah ok. Well after two years I just wantl Jacy Hurst or whoever will be the nominee to get nominated. As angry as I was about the whole Jabari Wamble downgrade, knowing Marshall still hasn’t turned in his blue slip for whatever reason just angers me even more now.
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If the Dems can pull off a senate miracle next year, it could be a decent rest of the decade. Of course, it’s way too early but good to know the early numbers look decent if they can get over the next hump.
(https://www.msn.com/en-us/news/politics/republican-senators-could-be-stuck-in-the-minority-for-the-rest-of-the-decade-if-gop-doesn-t-flip-chamber-in-2024-campaign-chair-warns/ar-AA192ez2?ocid=msedgntp&cvid=b154956be76149deb9e1318a52ca3214&ei=15)
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Definitely. In 2026 I only see a small handful of potential losses (Georgia and maybe Michigan) and good pickup opportunities in Maine and NC.
Needless to say 2024 is a critical election in more ways than one.
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Apologies if this a repost but we have the finalists for the NY chief judge position
https://www.cityandstateny.com/politics/2023/03/new-chief-judge-shortlist-features-three-current-court-appeals-judges-no-latinos/384422/
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Haaaaaaaaaaaaaaa… Republican governor Hochul must be so upset. The list doesn’t include John Eastman, Michael Flyn or Tucker Carlson. I know she had her heart set on nominating somebody far to the right of LaSalle & I had my heart set on seeing her embarrassed for a second time. Perhaps she can sue the Democrats again for a second time this year for a list with more prominent conservatives.
From the list we know Corey Stoughton is out from the start. Only a Democrat would pick her so no shot with Hochul. If I had to guess I would say she will pick Caitlin Halligan which I wouldn’t mind. She should have been picked previously by Cuomo & it would be a nice reward after what was done to her when Obama nominated her to the DC Circuit.
Anthony Cannataro seems to be the only horrible candidate on the list. I guess the commission is trying to save Hochul from herself which is a shame because I would love nothing more than to see her get embarrassed a second time in as many months by her own party. But then again with one horrible pick out of 7 names, there’s still a chance she picks the one horrible nominee.
It’s really disappointing there was no Hispanic on the new list. Jorge Rodriguez would have been the ideal pick because that could have solved two problems at once. At the end of the day the legislature just needs to get rid of the commission all together or at least change who decides the composition.
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https://livestream.com/pepperdinecsol/lawreview2023/videos/235551775
Here is the link to the panel discussion with ninth circuit judges patrick bumatay, callahan and holly thomas biden appointee , if anyone is interested in it. it was a fun panel.
The discussion was about finding consensus among federal judges and discussing about when/when not to dissent etc
Trump judge bumatay tended to disagree with the premise and said judges role is not to find consensus but to rule on what they see as right under law, while holly thomas tended to lean towards preferring consensus and avoiding dissent if possible, although she still said she wont hesitate to dissent if she strongly disagrees in principle with the decision but consensus and collegiality would be something she would want or aspire to
If you watch the panel discussion, judge holly thomas said she has had her mind changed before on cases after hearing from other judges/colleagues and then look towards judge callahan way , i think indirectly implying it was her who changed her view on certain cases (she and judge callahan have sat on several panels on the ninth circuit already)
Fun stuff.
Arianna freeman and holly thomas are truly gems in the federal judiciary
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Judge callahan on the panel also indirectly called out a certain judge (”his” referring to a man) saying that dissents that go after colleagues personally and attack their intellect reverberates throughout the bench and that such judges loses their credibility and are often seen as pariahs even by their colleagues.
She even said when they were voting on whether to take a case en banc that if the vote was close the judges wont vote with ”that person” because of the bad faith attacks with their dissents.
I think its clear judge callahan was referring to trump judge van dyke and it just goes to show you that you can be a conservative principled judge like callahan while still maintaining colleagues respect and reputation on all sides of the aisle, something judge van dykes and duncan clearly refuse to understand at all.
It seems social politics and how you treat your colleagues directly impact cases as well. It was fascinating
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Interesting. I’ll save the link & try to watch this weekend. I love how the judges are being so open in their answers. I would expect that from retired judges but great stuff from active judges. Thanks so much for the link
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Your welcome, there was also a district court panel in that same link with two obama district judges and one trump district judge, they each were asked to address the notion of ”forum shopping” where litigants can file lawsuits in single district divisions with only one judge like in texas, which also have that have nationwide policy ramifications with nationwide injunction.
They all thought it was ”fair game” to some point and just part of the brinkmanship of the court system the trump district judge which was from texas had a very good and nuisance answer. I have to say as someone who initially thought all trump conservative judges were hacks thats clearly not the case, with people like sullivan, boabas and newsom and the trump judge in this panel as well.
You don’t have to be a charlatan like HO and Duncan to be a thoughtful yet strong conservative judge
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@aangren
I couldn’t wait to watch it. WOW, great discussion. Here’s some of my take aways from each judge.
Judge Callahan – She was on my watch list to possibly take senior status during Biden’s first term but I’m taking her off after watching her on this panel. She was by far the most active judge & listening to her makes me believe she has no intentions of stop doing a job she loves. I wonder which judge she was talking about who they call “The abdominal No Man” because he never voted for en banc cases, any idea who? She was very defensive about attacks on judges while also being honest about the 1% of judges who use personal attacks such as her example of the judge (She slipped & said HE then tried to change it to HE or SHE), that drove other judges even if they agreed with his ideology, to rule against him. She really seemed as though she strives to get the right answer for the law. I enjoyed listening to her talk about how they operated during Covid including her being in the airport in a raincoat for a death penalty case.
Judge Reyna – I loved his story about how he was confirmed by the senate on a Monday, sworn in that Thursday, at the courthouse that Friday & had thought he would just sit back, stay quiet & wait a few months to say much. Then after a couple of weeks his law clerk handed him an opinion from the chief judge that he thought was all wrong. He had to go home & wrestled with himself over should he dissent or not, ultimately agreeing the president & senate didn’t give him such enormous powers to sit back & remain quiet.
Judge Thomas – She is one of my favorite Biden picks (She was on my list I emailed to The White House shortly after Biden was inaugurated) & this panel discussion only reinforced my opinion. I agree with everything you wrote regarding her so I won’t repeat it. I enjoyed listening her to talk about clerking.
Judge Bumatay – His microphone was extremely low so it was difficult to hear him. But wow, he definitely had some different answers that separated him from the others. He has a viewpoint on dissenting different from the others. He brought up dissenting opinions during slavery to try & justify fiery dissents in this day and age isn’t so bad in comparison. His answer on the great question regarding should the regional circuits be eliminated & just have one national circuit surprised me. I never thought of that question but now that I have, even though I understand the moderators point, I would not be in favor of removing the regions for circuits. Judge Bumatay answered he would like to see immigration have its own specialized circuit similar to the Federal Circuit.
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Sounds from this like McConnell will be out next week as well. Possible that we get 3-4 judges confirmed on Wed/Thur
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@aangren
Thanks so much for sharing these. I nerd out on these discussion sessions.
I especially enjoy the Lawrence VanDyke allusion anecdote. It’s easy for us to write these judges (Ho, Duncan, etc.) off as mere extremists. But these people don’t care about being ostracized on their respective courts. It’s all a part of their act, an audition to stand out to the next Republican president. Clarence Thomas cannot live forever. And you are not going to make it onto DeSantis’s short list by merely being another conservative that goes along to get along.
Speaking of Thomas, from what I remember you and I are the only ones in here who constantly talk up Holly A. Thomas and hold her as one of our favorite Biden circuit judges. Even against the Bloomekatzes, the Perezes, and the Freemans (all whom I love) Thomas is probably my favorite. Timing is so cruel because in a perfect world Clarence would leave the bench one way or another and Biden would get to replace an awful Thomas with a superstar Thomas. This is very unlikely now, for sure, but, hey, one can fantasize.
New York Court of Appeals
The gall of Anthony Cannataro! After failing to be nominated the first time and sneering LaSalle’s critics, he applied again? How embarrassing! It would give me such great pleasure to see him pass over again. But this is Hochul, so I won’t get my hopes up. If, indeed he’s foolishly chosen, I hope the NYS senate Dems stand up to Hochul yet again. Though it would be more difficult to pull off a second time, especially with the ongoing budget negotiations
Shirley Troutman is no great liberal, but I guess she’s probably the best we can hope for from this governor.
Unlike others, I wouldn’t be so down with Caitlin Halligan. It seems like such a conflict of interest to apply for a job after being retained to represent the governor in a possible lawsuit over filling that same job.
It looks like the Commission again improperly excluded Judge Jenny Rivera from the list. Sure, she’s a kooky anti-vaxxer, but a solid liberal who should have been the Acting Chief Judge, if it weren’t for Janet DiFiore’s meddling.
Like the first time around, Corey Stoughton is the star of the list, so, she stands no chance with Lee Zeldin. Sorry, meant Kathy Hochul. If, in 2026, the sky’s falling, and all it takes to hold it up is my vote for Hochul, I will fully submit myself to be crushed.
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@Gavi
Add me to the list of people in this blog who raves about Holly Thomas. She is one of the four people I recommended to The White House for federal judgeships after he was inaugurated Ray have subsequently been nominated. She’s phenomenal.
I absolutely loved the Callahan Lawrence VanDyke (I assume that’s who she was talking about) brush back from the plate by the other judges discussion too. But as you mentioned at the end of the day they are auditioning for the next SCOTUS opening under a Republican president & I definitely think James Ho is the front runner.
And no need to apologize for confusing Lee Zeldin & Kathy Hochul. One is a conservative right wing, incompetent hack who would only nominate judges that would rule against woman & civil rights. And the other person is Lee Zeldin.
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Your welcome gavi and yes she is amazing i think you, dequan and myself agree in unison lol. In a perfect world she would replace clarence thomas or alito but the chances of that happening are next to neal, what is even more amazing is she is still in her early forties so she has a lot of time to build a resume and be a credible candidate for the supreme court . Although i think brad garcia when confirmed to the D.C circuit being a latino and alison nathan being LGBTQI, on the 2nd circuit have the edge if a new vacancy opens under bidens term in office.
Now on to this week fingers crossed we can get some judges confirmed i am hoping there is movement on the NY controversial nominees like merle and ho, since jessica clarke has already been confirmed to the bench.
At the very least confirm anthony johnstone who has bipartisan support and the others would got republican votes in the committees.
Biden FAA pick withdrew his name from consideration apparently chair cantwell didn’t have the votes to vote the nominee out of committee because of sinema and john tester. Is there any reason to worry sinema might start opposing biden judicial nominees? I was shocked the FAA nominee withdrew and see that as red herring.
I just hope she isnt a NO on ho and vera and the likes of abudu, sinema is really the worst of the worst in politics.
When she leaves the senate it would be better
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I’ll stick to my prediction from last year. I don’t believe both Manchin & Sinema will vote for all of Biden’s judicial nominees the last two years of his term as they did the first. Now I will also say that’s not necessarily a deal breaker as long as they aren’t voting no on the same nominee. I don’t see a nominee from the majority leaders home state not getting confirmed with a 51-49 majority. What you may see is they spit their No votes or one is sick (Cough cough) for certain votes.
As for this week, I never thought an Iraq repeal vote could take up an entire week of senate floor time. I didn’t even factor that into my “There really isn’t enough time” comments prior. This reinforces my thinking. Unless Schumer sends some cloture motions to the desk today, the best we can look forward to is Brookman being confirmed this week.
At this point I just want all 51 senators back, healthy & ready to go 3 weeks from today after the Easter recess. Between now & then, here’s what I’m looking forward to the next three weeks;
1. Another batch from Biden, hopefully with at least one circuit court nominee.
2. Fetterman announcing he is returning to work after the recess & Feinstein announcing she is either returning or retiring (I gotta be honest, I could care either way).
3. Harsh writing up another post or two for nominees that have been announced who doesn’t have a post on the blog yet.
4. Republican governor Kathy Hochul announcing her conservative pick for NY Chief Justice.
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Another reason why I wish we were prioritizing all of the “controversial” nominees. The closer we get to November 2024 the more likely Manchin and/Sinema start pulling shenanigans.
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@Joe
Exactly. Better to vote on them now. And if they unfortunately fail, we still have time to make new nominations.
@Dequan
We’ve discussed our different views on the prospects for the confirmation of Ho before, so I won’t rehash the entire thing. I just have to reaffirm that I am not as confident as you that the troublesome Dem senators won’t tank his nomination just because he’s the pick of the Dem Majority Leader. He has always been the pick of the Majority Leader, but that didn’t stop him from being stuck. And Sinema, who tanked Washington for the FAA post, is showing more and more disgust for Dems. In hope of curry favoring GOP votes in AZ. What sense of loyalty does she still have for Schumer? Anyway, as Ho’s biggest fanboy, I hope you are right.
@aagren
I was shocked to read about Washington’s withdrawal, too. It was an ominous sign when Cantwell canceled the committee vote last week. This is a massive win for Ted Cruz.
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@Gavi
I don’t necessarily disagree with your thinking. My confidence is more so because Schumer will figure out a way to get Ho confirmed. For instance, as we saw with Gallagher, Schumer can vote for cloture on Ho one week, then wait until the perfect time to cal up the floor vote another week.
Presumably this would be done at times at least two Republican senators are out. While I don’t wish harm on anybody, there will certainly be another natural disaster in a red state like we just saw in Mississippi. If Schumer falls up a vote when that states two senators are back home, Ho gets confirmed. He wouldn’t do that for everybody but likely could for somebody he recommended.
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@Dequan,
Got it. Now I understand your position. It’ll be less about those two senators and more about Schumer finding a way to ram through the nomination. This actually makes me annoyed that it wasn’t already done. We’ve had many weeks when we knew enough R senators would be out to offset possible Dem defections. This week should be included, with the possible absences of the Mississippians. It’s really something to put your life on hold for 2 years. Worse still is putting your life on hold for two years then not being confirmed in the end.
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Exactly Gavi. And yup, I completely agree. It should have been done already.
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If were that simple it would have been done already. If you want nominees like Ho and Abudu you have to expect that it will take longer.
I am sure that Ho, Abudu etc knew this when they got involved.
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I am also pretty confident on Dale Ho. Even if Sinema and Manchin came out against him, I think he’d do exactly that and ram his through one week when there are some R absences.
Anyway, I’m hopeful for 4-5 more cloture nominations later today. It should be a 49-48 D senate this week so it’d be great to knock out 3 district nominees Wednesday and 1 more on Thursday + Cloture on a circuit nominee (maybe Garcia or Johnstone?)
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If there are any Circuit nominees voted on, it will most likely be Brad Garcia.
I am expecting another White House announcement on judges soon, but it will be another small package.
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I agree, I think Garcia is the only pending circuit nominee that would get Collins/Murkowski/Graham. The others are likely all party line votes.
I also would suspect one sometime this week, so that nominees will be ready for a potential May 3 hearing.
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On Judge Callahan of the 9th Circuit, while she might not be as much of a bomb thrower as “Judge” Vandyke is, at the end of the day she still votes the same way he does the majority of the time so I won’t be praising her too much.
I also still remember an interview she gave to the LA Times after George W put seven judges on there where she and other conservative jurists talked about how they wrote their dissents in a way to get the attention of SCOTUS to reverse certain rulings.
Fellow George W Judge Sandra Ikuta gave a speech to the Federalist Society about how tough it was to be a conservative on a liberal court.
Bottom line, many of the jurists put on the courts under W/Bush Sr and Reagan are just as bad as the ones under Trump, they were just “nicer” about it (sans Scalia/Thomas/Alito and Edith Jones) so it got overlooked until it was too late.
As for senior status, there is no way Callahan or Ikuta are going to take senior status under Biden, nor are any of the other remaining Republican jurists on the bench who are eligible to do so.
They will wait until a Republican is in office again to do so, which IMO is another reason senior status should be reformed but won’t be.
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@Zack Jones, These are all the Republican appointed circuit (excluding Federal Circuit) judges that I think have a non-zero chance of retiring under a Democrat. Key word is non-zero.
Not all are eligible for senior status at this time:
-Ilana Rovner (7th Circuit)
-Mark Bennett (9th Circuit)
-Harris Hartz (10th Circuit)
=======Big drop off in likelihood-=============
-Kent Jordan (3rd Circuit)
-Catharina Haynes (5th Circuit)
-Leslie Southwick (5th Circuit)
-Ralph Erickson (8th Circuit)
-James Loken (8th Circuit)
-Lavenski Smith (8th Circuit)
-Danielle Forrest (9th Circuit)
-Jerome Holmes (10th Circuit)
Thoughts?
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Even though Rovner (who is the only one I could see from your list) is by far the most liberal circuit court judge, I think like Cabranes will be loyal to the party which appointed her and retire under a Republican. She has had more than a decade under Democrats where she could’ve taken senior status, and has chosen not to do so. The others I don’t think will willingly retire under a Democrat, and barring an untimely death will turn their seat over to someone from the party which appointed them.
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I would add Milan Smith of the 9th circuit as a possibility.
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Ilana Rovner was the one I thought most likely to retire under Biden but she has shown no signs of doing so.
She might be like Jose Cabranes, the most conservative Democratic Circuit court judge still in service but took senior status under BIden in that she is still loyal to the party that put her on the bench, even if she is well out of the mainstream of it now.
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@Frank, @Zack Jones, Rovner has been eligible to go senior since August 2003 (about to be 20 years). She passed it up under Presidents of both parties. I think she may just decide to die on the bench.
I’d say Hartz has about a 50% chance of retiring under a Democrat.
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Watching the Senate, Schumer has filed cloture on a motion to proceed on another bill. No idea if it’s expected to be partisan or extra time confusing with amendments or what, but I guess we can’t expect to get back to judges after the AUMF repeal tomorrow.
He also spoke on the unprecedented holding up of all military promotions too, I’m not sure how he’ll resolve that. There’s also an exec nominee I think he’ll prioritize soon, Dilawar Syed, who was held up in committee for two years to be deputy SBA administrator, causing extreme upset that Republicans were blocking Biden’s highest ranking Muslim nominee. He’s finally on the floor so there’s pressure to finally get him through.
All to say, who knows if any judges will come this week.
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Ryan, Milan Smith stated a few months ago that he plans on dying on the bench, so don’t expect him to take senior status.
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Frank is unfortunately correct that M Smith is going to die on the bench. From their continuing active status and what I’ve heard from CA7/CA10 practitioners, the same is likely true for Rovner and Hartz. I wouldn’t hold my breath for any more Republican flips between now and 2024 – if Biden/Senate Dems win in 2024, then things might be different.
My frustration is at the Dem appointees for still not going senior (or at least announcing an intent to go senior) – with this administration’s glacial pace, judges need to announce yesterday. I’ve mentioned Wardlaw, Gould, Stewart and Moore before, but Stranch and Wynn can go senior now too and I don’t know what they’re waiting on. Correct me if I’m wrong, but it’s been 6 months since the midterms and only circuit vacancy that has opened is Watford – the Trump administration was lobbying circuit judges like Kanne to retire, and it’s political malpractice that the Dems aren’t doing the same (which seems like a reasonable inference given the lack of nominations to open circuit seats). Delery should be ashamed of himself.
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@Ben
I have no clue what the Fire Grants & Safety Act is either. What I do know is, no matter what it is, it’s probably much less consequencal than lifetime appointments to the judiciary. If the US senate is going to be voting on bills like this, taking a week for bills like repealing the Iraq authorization, having a 3-day work week at best & having senators like Cotton & Tuberville hold up voice votes on non-controversial positions, it boggles my mind even more that anybody can seriously say “There’s plenty of time”…smh
@Hank
Spot on. Outside of death, I see little chance of many more flips on the circuit courts by the end of Biden’s first term. That puts the emphasis on Democrat appointees even more. I do think some are waiting for early next year so they can remain in active service another year or so. I think as long as they announce before the end of January, the eat will get filled. Although I am getting even more skeptical of that timeline looking at the glacier pace we have seen as of late. I would hope any of them who are thinking of that would reevaluate their thinking & accelerate that timeline to announce this year at some point.
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I think basically all the judges who wanted to go senior for political reasons have already done so or at least announced. I think from here on out all we will get is the occasional judge dying, going senior for health reasons, or going senior as soon as they are eligible. All 3 of these categories could include Republican appointees, since some judges will go senior as soon as they can regardless of who controls the White House and Senate.
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I think our best chances for future vacancies are judges who either just became eligible to go senior or judges who are about to become eligible to go senior. I don’t expect that anyone who’s been able to go senior for a long time will do so now barring failing health.
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In theory, there is plenty of time. You can make the argument that considering how the senate operates that 21 months isn’t much time, but with a Republican house less legislation will be passed which opens up the door for faster judicial confirmations (when they have everyone available to vote).
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@Frank
There are a few problems with that theory. The first is history. The senate majority has changed hands mis term numerous times in the past. This senate has been in session for 11 weeks so far not counting the first week which started on a Tuesday & this week. They have already taken 3 full recess weeks & within those 11 weeks, the newest senator has been out 5 of the weeks. Since the Democrats have older senators on average than Republicans, then it would be safe to assume they will have additional senators miss WEEKS, & that’s not including individual days here & there. And let’s not forget Democrats report when they catch Covid at a much higher rate than Republicans so just based on Covid alone there surely will be other Democrats that will miss weeks.
Second, there will be little good faith from Republicans on multiple fronts. From forcing floor votes on nominations that in the past traditionally got voice votes (Such as the military officers), to only turning in less than 30 blue slips comparted to over 100 at this point in Trump’s term, to almost every judge requiring a cloture vote, much more time will be wasted in the next 21 months compared to Trump’s.
Third, as the election gets closer we can expect the senate to be out for weeks & even a month at a time. That’s not to mention individual senators who will be out campaigning such as Tester, Manchin, Sinema, Brown & others.
We must also remember the Democrats have a 51 – 49 advantage but that’s including Sinema as one of the 51. As discussed earlier, I fully expect Sinema & Manchin to vote no on some judicial nominees with both running for reelection next year.
Finally, we don’t know what can happen in the next 21 months to a Democrat from a red state. Things happen & for one reason or another any one of them can leave their eat between now & then. Surely if the senate majority was on the line, a Republican governor would likely replace that Democrat with a Republican unless state law prevents that.
So in my opinion, we do not have enough time… Lol
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I hate to sound like a broken record but 20 months is still plenty of time.
The GOP has to leave to run campaigns too. Manchin if he runs is from West Virginia. I don’t think he will miss many floor votes. He lives close to the capital
It’s too early to complain about lack of nominations and confirmations. I guess you can if you like to but it’s not going to change anything.
When Feinstein and Fetterman get back we can pick up where we left off.
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Of course, very few people outside of this blog know who Dale Ho is, just as an example of what people here want. Not to say judicial nominees aren’t important, but there are always going to be interest groups and other forces pushing the agenda, and even with the divided congress there will be some pieces of legislation voted on.
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Greenaway Jr. announced earlier this year that he will be retiring in June, but other than that I believe you are correct.
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Two points I notice at the discussion here:
The first is, that many people here see the whole process just as strategic game, where eligible judges should go, so that new ones can be appointed. Personal reasons are also playing a role at each case is here almost never mentioned, and if, then criticized.
I take William Rehnquist similar to RBG: More than eighty years old, cancer, several decades on SCOTUS, Republican President and Senate Majority.
But: Wife dead for more than ten years, children out of the house, so retirement and waiting for dead home alone? Doesn’t sound to me to be an attractive option.
If you miss the right point to go, you will stay until the very end, like I expect Newman, Lourie and Rowner will do and Kanne did. They don’t think like most people here about who is president, flipping seats or so in my opinion, I’m sorry.
The other one is, morale conviction of judges, who are appointed by Democratic Presidents, and must go at a Democratic Administration, and must not under a Republican one. So Christopher Droney = bad and D. Brooke Smith = good although they did the same thing?
I know the origin of this thinking, but want to notice, that if finally leads to cemented existing conditions, we already see at the circuit courts, where the Fifth will forever stay, what it is now, I don’t like that idea. Luckily that’s different at district courts, at least at the moment.
A mandatory retirement would be useful.
Abolish senior status would also wishful, but most courts rely on them due to high caseloads.
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Should be noted in some cases like Mark Bennett that despite his age, he hasn’t built up enough service time to be eligible to take senior status and even if he was, there is no way he is taking senior status under Biden.
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Nobody is saying Bennett (or any of the Trump appointees) is going senior anytime soon – they legally can’t until they are both 65 and have at least 10 years of service.
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@Hank
I love your post from yesterday. You’re one of the few clear-eyed. non-fawning sycophantic people in here when it comes to assessing Biden on judges.
Dequan thinks the cut off is January 2024. IMO, the cut off for this administration is probably September 2023, if not earlier.
Dequan did a great job at illustrating how we don’t have enough time as it is (despite the broken record to the contrary).
We should also take a couple other things into consideration:
1: We almost never talk about a nomination getting defeated and having to start the process all over again. It already takes additional months for controversial nominees to eventually make it to a vote. If/when that nomination finally fails, all that time is wasted and lost forever. Then the WH will take its own sweet time finding replacements.
2: Dequan factored in general absences of individual senator due to campaigning, but not an October 2022-style session cancellation. Last year Schumer gambled on canceling the October sessions of the senate in order to give Dems more time to campaign. This gamble paid off. But success in the lottery is no argument for the lottery. I could see him doing this again in October 2024, further slashing the available time.
This is how I sum up the There-is-Enough-Time crowd:
1: The current pace of confirmation is just right. (In that case, I strongly disagree with you, but ok.)
2: The pace will pick up once all Dems return. (So, you think that in a caucus with a substantial amount of old people that prolonged illness-related absences will be rare going forward?)
3: There won’t be much legislation for the senate to consider, since the House is GOP. (People only focus on House-passed bills that the senate won’t take up. You do know that the senate votes on its own bills, regardless of whether the House wants to take it up? Expect this to be more the case as messaging bills take up more and more floor time as the election draws closer. There’s only one type of bills that must first be passed in the House, and that involves raising revenue, something that this batch of GOP just loves to do.)
4: There are other priorities and only people on this blog cares about judges. (Sure, but as the great Mitch McConnell loved to say when he was in charge: “The Senate is in the personnel business.” There are over 1200 positions that require senate confirmation. Ignoring those would have a greater detrimental impact on our government than not immediately passing a non-emergency bill or messaging bill. The senate can address both.)
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@Gavi
Spot on. I’m definitely a broken record on this issue, can’t deny that. It’s far too important of an issue not to be in my opinion.
While my cut off is January 2024, I must admit the pace that I’ve seen since the election might bring me closer to your September 2023 date.
One correction. I did include an October 2022-style session cancellation into my calculation. I mentioned additional months long recess, October 2024 was one of the months I was counting.
But other than that, I completely agree 100% with what you said. But hey, maybe I’m wrong & we do have all the time in the world. Also maybe the Earth is flat, water isn’t wet & Kathy Hochul is a a Democrat. Ok let’s be honest, out of those three options, I’d put my money on Earth being flat & water being dry being proven right first… Haaaaaa
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Haha, true!
Oh, yeah. Sorry I missed that. But yeah, glad we are counting those session cancellations.
I didn’t include this, but I can see efforts to raise the debt ceiling consuming as much as an entire month, where few other things can happen.
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WHAT… A MONTH? Dear God. I’m not familiar with the debt ceiling procedure as I am the judiciary but I may have a heart attack if it takes anywhere NEAR a month of senate time… Haaaaaa
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I agree the debt ceiling will take some time to raise.
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> You’re one of the few clear-eyed. non-fawning sycophantic people in here when it comes to assessing Biden on judges
I guess we could all just join the bandwagon of calling Biden the worst democratic President in 50 years every week all judicial nominees aren’t confirmed 3 months into the new 2 year session because there are only 48 or 49 Dem senators in attendance.
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@Mike
And I would welcome you aboard with open arms.
We aren’t complacent and we don’t settle for mediocrity on this bandwagon.
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On the New York Court of Appeals, I would say Shirley Troutman is the most likely nominee at this point.
Left unsaid is how livid many Democrats still are with what the court did with redestricting and that is going to doom a couple of names on the list.
Should also be noted Hector Lasalle had a broad coalition opposed to him and not just progressives.
There is no assurances that will happen a second time if folks don’t like the name Hochul picks.
Also, I know some folks want Jenny Rivera in charge but being anti-vax is an automatic disqualifier for me and I’m glad she was left off the list.
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@ Dequan
Perhaps I’m an optimist but i think the cutoff for nominees is July 2024 ( for the WH a little earlier, if they want nominee(s) processed, they’ll have to send names to senate by spring)….As long as Democrats are in control of senate, next Jan – June will be regular order in the committee and floor votes….There is no reason why they won’t hold hearings especially early in the year….After the summer recess, then the train probably stops….Sept 2024 they’ll be in 2-3 weeks tops, and probably out all Oct, returning week after the election.
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Yes, I 100% agree… with your assessment that you’re an optimist.
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I don’t know what you think will happen from Jan – June 2024, but there is no conceivable reason why hearings and votes can’t take place until then, so as long as Democrats remain in charge…
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@Rick
In a perfect world I would agree with you. Unfortunately, this isn’t a perfect world & the US senate is even less perfect. I went to sleep two nights ago with a certain timetable in mind. Then there was another school shooting in Nashville with renewed (Rightfully so) calls for gun legislation. That will add time to the senate floor schedule. Then I went to sleep last night with another timetable. Today I wake up & see @Gavi predict close to a month for the debt ceiling debate.
My point is I think my timetable was actually optimistic as it was. But events we can’t predict can add on to the senate workload. So I just don’t see the argument that the US senate (Better yet THIS US senate) has enough time.
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While I get that unexpected world events can take up senate time (although sadly nothing will be done on gun legislation other than the “thoughts and prayers” offerings and GOPers blaming shootings on rap music, violent movies, & pornography), Democrats just need to make confirming nominees with lifetime appointments a priority.
They’re usually not that many circuit court nominees to process, and they are the ones that take the time (30 hours)…..District Court nominees only need 2 hours after a cloture vote….And with a working majority (well, we need Feinstein and Fetterman to return) no more discharge votes needed..
Senate Democrats just need to look at the 2024 & 2026 senate maps…..If they would lose enough seats in 2024, they may not have a majority again for (insert years here)? The time is now is might be cliche, but it is quite appropriate here..
And the WH needs to do its part and send nominees faster…This HAS to be a complete team effort – WH, SJC, and action on the floor
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@Rick
Now that we definitely agree 100% on everything you said there. Next time say it a little louder for the people in the back in DC… Haaaaa
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@Hank
So it sounds like you are agreeing with us. The time is now. Not 20 months away that isn’t assured, due to conflicting priorities. And I make a distinction between the WH’s nomination process and the senate’s confirmation. While, with a little determination, the senate can knock out multiple confirmation votes, the senate cannot act on nominations that the WH hasn’t sent it. We do not argue that the senate will all of a sudden stop confirming judges. We argue that, based on the well-known pace of WH nominations, the senate might not have enough time to confirm everyone the WH finally sends to it after a certain time. My cut off time is in September 2023.
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Glad that I’m not the only one critical of Biden/Zients. Read the article, it’s great. It’s baffling that Alex Sammon didn’t include post-Klain judicial nominations in this analysis of Biden.
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The Willows Project in Alaska was already approved and there was nothing Biden could have done to stop it.
Also, many people in Alaska including Mary Pelota were on board with it.
As it was, he got the size of it reduced but that is all he could legally do, otherwise SCOTUS could have used this case to gut eco laws.
That’s what happens when one side sits out elections on a regular basis and the other doesn’t.
They get to pick the judges who make rulings that shape our lives and it’s why I have to simply roll my eyes at some of the groups lecturing Biden now given that in the past, they also said courts didn’t matter.
They sure as heck too and it’s get annoying to see some folks upset that Biden can’t magically fix what they helped break.
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He probably didn’t include the turn to the right on judges because he knows the bulk of the vacancies are now in red or purple states, so it’s bound to move to the right at this point. The problem is more so when you’re getting Republicans appointed in states like New Jersey. Absolutely inexcusable.
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There’s only one reason I can think of why this is happening…the nominees are experienced well-qualified consensus builders.
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Hochul’s recently submitted program bill is the surest sign that she plans to pick one of the three sitting associate judges on the list. Once she nominates one for elevation, she gets to make a second pick from the same list to replace who’s elevated to the Chief’s seat. Gotta love how ridiculous our system is:
https://www.cityandstateny.com/politics/2023/03/hochul-could-pick-two-court-appeals-judges-current-shortlist/384523/
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I just can’t believe the Democrats can’t eliminate or reform the commission while they have a super majority. Eliminating the commission doesn’t remove the check on the current or would be future horrible governor from making a bad pick. They still have a check on the governor with the senate confirmation process. I’m not familiar with New York law but it seems like even if it has to be passed through the voters, surely some reforms would likely pass after this debacle.
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New article on the Delaney nomination. Still very much in the air. Booker and Hirono undecided. Gives some good context as to why the NH senators are still all in on him. We’ll see how this turns out….
https://www.politico.com/news/2023/03/29/judge-new-hampshire-senators-00089300
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I pretty much figured the two Senators still fighting for him comes from NH losing it’s primary status but it’s pretty clear he doesn’t have the votes.
Take the loss on this and nominate Sam Elliot whom IMO should have been the nominee all along.
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I would be surprised if Senator Hirono ends up voting for Delaney. It seems as if both Massachusetts senators are a tough sell as well. Shaheen & Hassan may have to court Republican senators to get this nominee over the hump. Graham, Kennedy & Tillis probably will side with Blackburn but are possible yes Votes.
It looks like the article confirmed what some of us have suggested. That “the White House were uneasy about Delaney but felt they couldn’t pick a fight with the New Hampshire senators after the state lost its first-in-nation primary status”. I’m still angry they played Russian Roulette with a circuit court seat in an election year that the Democrats could have lost the majority.
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Again with this absurd link between the two. Now, we have the senator outright rejecting this. Also, we have chronology that should have put this bad take to rest: Shaheen started the process with Delaney in January 2022. The primary change happened in December 2022. How equally petty and magically powerful do you think Shaheen is? To pick someone out of spite 11 months before her crystal ball told her about an event that she would object to.
It would be darkly funny if the Delaney nomination fails and Sam Elliot isn’t the new nominee as you’re convinced it would be. To say nothing of the possibility that the eventual replacement might not be nominated in time to be confirmed.
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@Gavi
A few disagreements with the issue being put to bed. First, the senators outright rejecting the notion that the primary change had anything to do with Delaney being nominated doesn’t prove anything because we are saying The White House felt pressured not to go against their recommendation after changing the primary order. So if the senators presented them with a nominee they didn’t want, they would have either had to reject their wishes for a second time on a major issue or nominate the person. We are saying the latter happened. So the senators are likely telling the truth without changing what we are saying also being true.
Second, your timeline of the primary change happening in December 2022 is leaving out one major thing. It had been credibly discussed since 2020. I’ll include a couple articles below including one from 2021. So despite the final decision being made when you said, the senators had been aware for years the change was possible & even probable. No crystal ball would be needed.
As for a new nominee not being able to be confirmed, that would be a complete dereliction of duty. It’s March 2023. If the senators can’t recommend a new nominee, that nominee be vetted, nominated, given a hearing, SJC vote, cloture vote & confirmation vote by December 2024 then the seat doesn’t deserved to be filled by this White House. The Republicans would deserve the seat if that occurred in my opinion.
(https://abcnews.go.com/Politics/early-states-start-scramble-lead-2024-primary-calendar/story?id=76056579)
(https://www.politico.com/news/2022/12/02/democrats-biden-2024-primaries-00071943)
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I just wish we could get some resolution on it one way or the other. I suspect Hirono and Booker will ultimately come around and support (Graham might vote for him anyway). But if the nominee is defeated/withdrawn that will take up valuable time that should be focused elsewhere at this point.
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@ Dequan,
We were talking about cut off dates in past posts RE: 2024
To clarify, in my opinion, I think cut off dates mean different things
Jan – Feb 2024 – Probably latest for WH to send new nominees to senate
June 2024 – Latest date for a SJC nomination hearing
July 2024 – Last chance to vote nominee(s) out of SJC
Fall 2024 – ???? Senate probably only in 2 weeks in Sept, then out til week after 2024 election.
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I think it all depends on how long their backlog of previously named nominees are, how long they’ve been waiting, when they get cleared out, etc. If the backlog is cleared up/better than it is now, then it’s easier to see new nominations being still viable further into 2024. A lot of “ifs” I know.
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For some reason my reply to @Gavi didn’t post. It was fairly long so I’ll wait to see if it post later because I don’t feel like writing it again but I had a few disagreements in regards to the Delaney nomination.
@Rick
In regards to my cut off prediction, remember a couple things. One, I’m only talking about circuit court seats. Two, I’m only referring to seats in red states. Any vacancies announced after January 2024 in both of those categories, I don’t see THIS White House will fill the seat before 2024 ends. I know @Gavi’s timeline is even earlier than that & I would be inclined to move back towards his date before believing any red state vacancies could be announced later than my date & get filled.
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If we just use 2022 as a reference point, there were circuit court nominees in May, June, and July who were all confirmed in December, so I suspect we may see a similar timeline in 2024. If we want to stretch that even further, Deandra Benjamin was nominated on September 6 (announced August 9) and was voted out of SJC on December 8, so even a nomination that late in the calendar would be able to be confirmed if desired.
It’s worth bearing in mind that the senate focused heavily on the marriage bill and the spending bill in the dead period at the expense of judges. I don’t see them doing that again in 2024 for a circuit nominee.
Right now my biggest concern is getting Fetterman and Feinstein back to DC so that Schumer can knock out the rest of these nominees after Easter. The circuit nominees and the 6 long standing district nominees have all waited far too long for a floor vote and if all 51 Dems are present those should be the first order of business the first two weeks back.
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@ Dequan
Yeah, I was thinking more of Circuit seats in general, whether they are from blue, purple, or red states…
I just think back to 2018 which was generally a good year for Democrats…They won the House and a whole bunch of governorships, BUT they had a net loss of 2 in senate that year….The Bill Nelson lost was awful, apparently some people only voted in the governor race and left the senate race blank according to one article I remember reading…Nelson lost by about 10,000 votes out of 5 million cast….Next year, is that same brutal map again
Millhiser already has written that Sotomayor and Kagan should retire while the getting is good
https://www.vox.com/policy-and-politics/23507944/supreme-court-sonia-sotomayor-elena-kagan-ruth-bader-ginsburg-retire
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Senate has finally passed the AUMF repeal. McCarthy better bring it up for a vote so this time wasn’t totally wasted. Now they’re moving onto this firefighting grants bill, which is apparently not getting unanimous consent only because Rand Paul threw a fit in committee over amendments. Ugh. Then also a vote on a Covid related resolution.
If Schumer files a circuit cloture nomination today, is that enough time to vote on it tomorrow afternoon and then confirmation when they return from recess or no?
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Cloture motions just sit for 48 hours unless there’s a unanimous consent agreement. So besides Brookman, no chance on that happening so the soonest any other judges will be confirmed is after the 2 week Easter recess.
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The soonest we’d likely see some cloture motions is tomorrow afternoon. Those could be brought for votes on the Monday after recess.
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As for Rand Paul, I have the same response to his objections & holds as I did to senator Cotton & Tuberville. If there’s no consequences to their action then are they really to blame? My answer is NOPE.
There is no threat of Schumer holding session on Friday to pass the legislation or confirm the nominees. There’s no threat of Durbin saying any senators that are doing blanket holds will no longer have blue slip privileges. Hell there’s not even a threat to keep the senate in session until Thursday 8pm instead of the normal 3pm.
MAGA Republicans can’t help being obstructionist no more than a dog can help being a dog. Either the Democrats do something about it or they will continue.
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Per Politico, Fetterman will return to the senate on April 17. Hopefully Feinstein will join him as well.
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Very good news. While I’m not familiar with Shingles, I can’t imagine senator Feinstein needing more than 7 weeks to recover. Now if she’s out for any other reasons between now & the end of 2024 remains to be seen. At least Dems can finally have the majority voters gave them for a while until the inevitable next senator is out for whatever reason.
I’m looking forward to the senate having 2 weeks recess. Let’s get everyone healthy & ready for work when they return. There’s a five week period the senate will be back in session when they return. They really should be able to clear the deck of the heavy hitters & nominees from 2021. It’s time to get them confirmed. I hope Schumer sends some judicial cloture motions to the desk today or tomorrow to set up the return.
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I’ve heard Shingles is very painful but not life threatening….I got the Shingles vaccine ( 2 shots over 6 months) a year ago
The WH REALLY NEEDS to send the senate those open circuit vacancies (4th, 5th, 7th, & 10th)…There aren’t that many new ones out there from 2023, I can only think of Greenway and Watford as sitting circuit judges taking senior status this year
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Ah ok. I guess with her age plus her being the oldest senator, we have to hope she’s just out these 7 weeks. If she can’t return after the recess, I truly hope Schumer & Durbin can talk her out if stepping down from the SJC for the good of the country. We can’t move those nominees to the floor without her vote unless they want to waste 4 hours to discharge which they don’t of course.
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I agree. Best news we could hear tomorrow is cloture motions for two circuit nominees like we did before the August recess last year
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