Judge Holly Thomas – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Los Angeles County Superior Court Judge Holly Thomas is, at 41, the youngest of the four nominees to the Ninth Circuit put forward by the Biden Administration. If confirmed, Thomas would likely be a strong future contender for elevation to the Supreme Court.

Background

Thomas received her B.A. with Honors and Distinction from Stanford University in 2000 and a J.D. from Yale Law School in 2004. After graduating from law school, Thomas clerked for Judge Kim McLane Wardlaw on the U.S. Court of Appeals for the Ninth Circuit.

After her clerkship, Thomas joined the NAACP Legal Defense and Educational Fund as assistant counsel. In 2010, Thomas moved to the U.S. Department of Justice Civil Rights Division as an appellate attorney. She left the Department in 2015 to join the New York Solicitor General’s Office.

In 2016, Thomas returned to California to work for the California Department of Fair Employment and Housing. In 2018, Thomas was nominated by Gov. Jerry Brown to the Los Angeles County Superior Court, where she currently serves.

History of the Seat

Thomas has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit. While the White House has not announced which seat Thomas is expected to fill on the Court, she may be nominated to replace Judge Richard Paez, who is the only Los Angeles-based judge on the Ninth Circuit taking senior status.

Legal Experience

Before joining the bench, Thomas worked primarily as a civil rights litigator. She started her career at the NAACP Legal Defense and Education Fund. At the fund, Thomas was part of the legal team that defended the University of Texas’ admissions policies, which used race as part of a variety of factors in college admissions. See Fisher v. Texas, 556 F. Supp. 2d 603 (W.D. Tex. 2008). The suit eventually ended in the Supreme Court, which upheld the policy. See id., 136 S. Ct. 2198 (2016).

From 2010 to 2015, Thomas worked for the Civil Rights Division in the U.S. Department of Justice. In this role, Thomas represented the United States in suing the Tucson School District over court supervision of a desegregation decree. Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131 (9th Cir. 2011). She also represented the government as amicus in support of female volleyball players suing Quinnipiac University for violations of Title IX. See Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012).

In 2015, Thomas left the Department of Justice to join the New York Solicitor General’s Office. During her time with that office, Thomas helped defend New York’s ban on assisted suicide. See Myers v. Schneiderman, 140 A.D.3d 51 (N.Y. App. Div. 2016). She also argued before the Second Circuit arguing that the Eighth Amendment complaint of a state prisoner should be dismissed for failure to exhaust administrative remedies (the Circuit, in an opinion by Judge Robert Katzmann, disagreed). Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016).

Jurisprudence

Since 2018, Thomas has served as a judge on the Los Angeles Superior Court. In this role, Thomas presides over trial court matters in criminal, civil, family, and other state law matters. Among the notable matters she has handled on the court, Thomas dismissed with prejudice a restraining order request by musician Elizabeth le Fey against her ex-boyfriend Sam France, finding that she had failed to disclose a prior restraining order against her by him on her application. Thomas’ ruling attracted criticism from some Los Angeles family lawyers, who noted that le Fey was proceeding without an attorney and that she had disclosed the restraining order in a different place on her application.

Overall Assessment

While Thomas doesn’t have a history of controversial statements, she is nonetheless likely to attract strong opposition for three reasons: first, her comparative youth; second, her history of work as a civil rights attorney; and third, her promise as a future SCOTUS candidate. Nonetheless, Thomas looks favored to win confirmation by the end of the year and to add a liberal voice to the Ninth Circuit.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The West

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We finish with the states of the West.

Ninth Circuit

Court of Appeals

In terms of the number of judges on the court, the geographic area covered, and the population served, the Ninth Circuit Court of Appeals is the largest in the country. The whopping twenty-nine judgeship court has been the target of many attempts to break it up, ostensibly due to its liberal leanings. Whatever its previous leanings (the Ninth was never as liberal as critics alleged), the current court is fairly evenly divided between liberals and conservatives. The court currently has ten judges appointed by President Trump, nine Clinton appointees, seven Obama appointees, and three Bush appointees. While the court is currently full, four Clinton appointees, Susan Graber, Marsha Berzon, Richard Paez, and William Fletcher, have announced their intention to move to senior status upon confirmation of successors. Only Graber’s seat has a nominee, labor lawyer Jennifer Sung.

Additional vacancies are likely as eight other judges on the court are eligible for senior status: Clinton appointees Sidney Runyan Thomas, Margaret McKeown, Kim McLane Wardlaw, Ronald Gould, and Johnnie Rawlinson; and Bush appointees Consuelo Callahan, Milan Dale Smith, and Sandra Segal Ikuta. Additionally, Obama appointee Andrew Hurwitz will also become eligible for senior status next July. The most likely of these judges to take senior status is Chief Judge Thomas, who may make the move once he concludes his term as Chief on December 1. Of the Bush appointees, the moderate Smith, who will be eighty next year, is the most likely to take senior status.

Alaska

The District of Alaska has three active judgeships, currently filled by Chief Judge Timothy Burgess, a Bush appointee, Judge Sharon Gleason, an Obama appointee, and Judge Joshua Kindred, a Trump appointee. Of the three, only Burgess is eligible for senior status. He is, however, unlikely to move to senior status before his term as Chief ends in 2022.

Arizona

The District of Arizona is one of the most overworked courts in the country, with heavy caseloads. Luckily, after years of chronic vacancies, all judgeships on the court are currently full, with one Bush appointee, seven Obama appointees, and five Trump appointees serving. No vacancy is expected before 2024, when Chief Judge Murray Snow, and Judges Douglas Rayes and James Soto all become eligible for senior status. However, if Judge Andrew Hurwitz moves to senior status upon eligibility next year, Judge Rosemary Marquez may be selected to replace him, opening up a seat for Biden to fill.

California

The nation’s most populous state also has the most district court judgeships serving its population, sixty one, divided into four districts: the Central, Northern, Eastern, and Southern. Despite the high numbers, California’s district courts are, if anything, understaffed in proportion to their caseload. This is particularly true now, as the courts have a whopping 18 vacancies with an additional two set to open next year. California Senators Dianne Feinstein and Alex Padilla have each claimed to have sent recommendations to the White House, but it’s an open question when nominees will hit the senate.

The largest of the four districts is the Central, based in Los Angeles. Currently, the court is served by 22 active judges, eight appointed by Bush, seven by Obama, four by Trump, two by Clinton, and one by Reagan. There are also six vacancies, with the oldest going back to 2015. Additionally, a seventh vacancy will open in February 2022 when Judge Virginia Phillips moves to senior status. Of the remaining 21 judges, nine are eligible for senior status: Reagan appointee Stephen Wilson; Clinton appointee David Carter; Bush appointees Percy Anderson, John Walter, Gary Klausner, Dale Fischer, Otis Wright, and George Wu; and Obama appointee John Kronsdadt. This makes future vacancies on the court fairly likely.

While the Sacramento based Eastern District is, with six judgeships, the smallest in California, it is also severely overworked. This is particularly true as it is currently having only four active judges carry the burden as the remaining two seats are vacant. Unless judges are confirmed swiftly, the situation will get worse next year when Judge John Mendez takes senior status.

The Bay area based Northern District of California has eleven active judges serving, all appointees of President Obama. An additional three seats are vacant. While none of the active judges is eligible for senior status, two, Edward Davila and Edward Chen, will become eligible for senior status next year and may move then.

Finally, the San Diego based Southern District of California is the hardest hit of all the California courts when it comes to vacancies, as seven of the thirteen judgeships are vacant. Of the remaining six active judges, one, Judge Janis Sammartino, is eligible for senior status and could choose to make the move.

Hawaii

The four judgeship District of Hawaii does not currently have any vacancies and no new vacancies are expected, with the first judges to hit senior status eligibility doing so in 2024.

Idaho

One of only two states to be served by just two active judgeships, Idaho is currently at half-capacity with Judge B. Lynn Winmill’s move to senior status in August. Winmill gave plenty of notice of his intention to take senior status, and the Idaho Democratic Party recommended four candidates to replace Winmill in March: Idaho Falls attorney DeAnne Casperson; former U.S. Attorney Wendy Olson; and Boise attorneys Keely Duke and Deborah Ferguson. Idaho Senator Mike Crapo indicated that his office has had many “preliminary” conversations regarding the judgeship with the White House and that they are working to find a mutually agreeable nominee.

Montana

While none of the three active judges in the District of Montana, all Obama appointees, are eligible for senior status, Judge Dana Christensen becomes eligible for senior status in December and may choose to make the move at that time.

Nevada

The U.S. District Court for the District of Nevada has two vacancies among its seven judgeships, with the remaining five judges all appointed by President Obama and years from taking senior status. The two pending vacancies on the District Court, one in Reno and one in Las Vegas, are both over three years old. Nevada Senators set up judicial nomination commissions to fill the vacancies with application deadlines of February 28, 2021. Since then, there has been no public recommendations made and the White House has not yet sent any nominations to the Senate.

Oregon

The U.S. District Court for the District of Oregon has six active judgeships: three Obama appointees, and one appointee each from Clinton, Bush, and Trump. The Court will have a vacancy open on December 27 of this year when Bush appointed Judge Michael Mosman takes senior status. Clinton appointee Ann Aiken is also eligible for senior status but has made no indication that she intends to take it. So far, there has not been any word on recommendations by Oregon Senators to replace Mosman.

Washington

After an agreement over judicial nominations fell apart during the Trump Administration, Washington’s district courts saw no confirmation over the last four years. As a result, the Western District of Washington now has five vacancies out of seven active judgeships, with one future vacancy set to open on the Eastern District. So far, nominees have been submitted to the Senate for three vacancies on the Western District, and for the lone Eastern District vacancy. All three Western District nominees are awaiting final Senate votes, with Judge David Estudillo being teed up for confirmation in September. So far, there is no timeline on nominees for the remaining two vacancies.

Additionally, the two active judges remaining on the Western District: Judges Richard Jones and Ricardo Martinez, are also eligible for senior status, so additional vacancies may open as the current ones are filled.

Tenth Circuit

Court of Appeals

The Tenth Circuit, based in Denver, is considered a moderate court, evenly divided between five Republican and five Democrat appointed judges, with two vacancies. The Senate is poised to confirm public defender Veronica Rossman to fill a Colorado vacancy on the court in September. The other vacancy, based in Kansas, is still without a nominee.

Of the remaining judges on the court, only Judge Harris Hartz, appointed by President George W. Bush, is eligible for senior status. While Chief Judge Timothy Tymkovich, another Bush appointee, will reach eligibility for senior status in November, he is unlikely to take senior status without serving out his term as Chief in 2022. Additionally, Judge Scott Matheson, an Obama appointee, becomes eligible for senior status at the end of 2022, and may also make the move.

Colorado

The seven judgeship District of Colorado is undergoing a significant transformation, with Biden already having appointed Judge Regina Rodriguez to the court, and having nominated Charlotte Sweeney for a second vacancy. A third vacancy is set to open in 2022 when Judge Christine Arguello moves to senior status. The only other vacancy that could open this Congress could occur when Judge William Martinez reaches eligibility for senior status at the end of 2022.

Kansas

The District of Kansas currently has all six judgeships filled, although Judge Julie Robinson, a George W. Bush appointee, is set to take senior status on January 14, 2022. So far, there has been no public application period or recommendation noted for Robinson’s seat. Judge Eric Melgren, another Bush appointee, also reaches eligibility in 2022 but has so far made no indications of taking senior status.

New Mexico

The seven-judgeship District of New Mexico is one of the busiest courts in the country. The Court currently has two vacancies, with a third set to open with Judge Martha Vazquez’s move to senior status next year. New Mexico Senators Martin Heinrich and Ben Ray Lujan submitted nominees to fill the two existing vacancies in January 2021, but so far the White House has only nominated one nominee: Margaret Strickland. Strickland is currently the longest pending judicial nominee waiting on the Senate floor, and, although Majority Leader Schumer filed cloture on three pending nominees before the August recess, he skipped over Strickland.

The situation could potentially become worse as Judge James Browning is also eligible for senior status, although he has not indicated that he will take it. If Browning and Vazquez vacate their seats, this could leave the District of New Mexico with less than half of its allotted judgeships full.

Oklahoma

The Oklahoma District Courts currently have one vacancy, from Judge John Dowdell’s early move to senior status earlier this year. So far, no public process has started to replace Dowdell.

Utah

The five judgeship District of Utah, composed of three Obama appointees and two Trump appointees, will see a vacancy open next year when Judge David Nuffer takes senior status. So far, there is no public replacement process for Judge Nuffer.

Wyoming

The three-judge District of Wyoming already has a vacancy pending, as Judge Nancy Freudenthal has announced her intention to take senior status on June 1, 2022. As Wyoming has no Democrats in the Congressional delegation, the White House will have to work with Republican Senators John Barrasso and Cynthia Lummis. During the Obama Administration, Barrasso endorsed and supported Fredeunthal and Chief Judge Scott Skavdahl, but it’s unclear if a similar accommodation would be reached today. Additionally, Judge Alan Johnson, who is 82, and is one of the few actively serving Reagan appointees, may also take senior status, opening up a second vacancy and potentially opening the door to a one-for-one deal.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The South

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. This week, we focus on the South.

Fifth Circuit

Court of Appeals

The Fifth Circuit Court of Appeals is arguably the most conservative court of appeals in the country. Many of the conservative legal movement’s most outspoken jurists, from Judge Edith Jones to Judge James Ho, sit on this court. The Fifth Circuit includes six nominees appointed by President Trump, four appointed by President Bush, three by President Obama, and two each by Presidents Reagan and Clinton. Of the judges, six are currently eligible for senior status: Reagan appointees Jones and Jerry Smith, Clinton appointees Carl Stewart and James Dennis, and Bush appointees Priscilla Owen and Leslie Southwick. Of the six, only Dennis, the Fifth Circuit’s oldest active judge and one of the few liberal voices on the court, has announced a move to senior status. So far, no nominee has been announced to replace Dennis.

The other judges on the court, with the exception of Stewart and potentially Southwick, are unlikely to take senior status anytime soon. Another of the court’s liberals, Judge James Graves of Mississippi, hits eligibility for senior status next year and may take so at that time.

Louisiana

Louisiana has three judicial districts: the Eastern; Middle; and Western. The twenty-two active judgeships across the three courts are all currently filled, although one will open on the Western District when Judge Elizabeth Erny Foote takes senior status in January 2022. No nominee has been put forward to replace Foote and Biden may seek to work with Louisiana Senators with a package of nominees to include U.S. Attorney picks and Dennis’ replacement.

Additional vacancies are likely, particularly on the Eastern District. Of the twelve active judges on the Eastern District, six are currently eligible for senior status: Martin Feldman, Sarah Vance, Eldon Fallon, Carl Barbier, Jay Zainey, and Lance Africk. Of the six, Feldman and Fallon, who are both over eighty, are judges to watch. Additionally, Chief Judge Maurice Hicks on the Western District, who will have to step down as Chief next year, is another possibility for senior status.

Mississippi

While Mississippi currently has no judicial vacancies, additional retirements are possible. Out of the nine active judges in Mississippi, three are eligible for senior status: Judges Michael Mills and Sharion Aycock on the Northern District; and Judge Henry Wingate on the Southern District. While no other judge reaches eligibility before 2028, Judge Carlton Reeves for the Southern District may be considered for elevation if either Southwick or Graves moves to senior status on the Fifth Circuit.

Texas

Texas’ four judicial districts entered the Trump Administration with eleven judicial vacancies, and, as a result of a flood of new confirmations, are almost entirely full. There is only one current judicial vacancy in Texas: on the Western District from the death of Judge Philip Martinez. Additionally, one future vacancy is expected next year when Judge Vanessa Gilmore moves to senior status in the Southern District. So far, there has not been any public movement in Texas towards recommendations to fill the vacancies.

Additional vacancies are likely as a number of judges are eligible for senior status. Currently, the possibilities include: Marcia Crone on the Eastern District; Sam Lindsay, Barbara Lynn, James Kinkeade and Jane Boyle on the Northern District; Lee Rosenthal, Ricardo Hinojosa, Lynn Hughes, Keith Ellison, and Andrew Crane on the Southern District; and Orlando Luis Garcia, Samuel Biery, Earl Yeakel, Kathleen Cardone, and Frank Montalvo on the Western District. Furthermore, next year, Judge David Godbey on the Northern District will reach eligibility for senior status.

Eleventh Circuit

Court of Appeals

The Atlanta based Eleventh Circuit, despite a more equitable party division, has a reputation almost as conservative as its neighbor to the West. An influx of Trump and Obama appointees (75% of the court has served less than ten years) leaves few judges who are eligible for senior status. One of the two judges who are, Judge Beverly Martin, is retiring in September. So far, there has been no nominee to replace Martin, who is one of the court’s few liberals. Judge Charles Wilson, the other judge eligible for senior status, is another liberal, ensuring that the conservative tilt of the court is unlikely to change anytime soon.

Alabama

All the states under the Eleventh Circuit are divided into a Northern, Middle, and Southern District. In Alabama’s case, the three courts together have fourteen judgeships: eight Trump appointees; three Bush appointees; two Obama appointees; and one vacancy. The lone vacancy is on the Middle District, vacated by Judge Andrew Brasher’s elevation to the Eleventh Circuit. Trump nominated Solicitor General Edmund LaCour to fill this seat, but LaCour was blocked by Sen. Doug Jones, and the vacancy is still pending. So far, there has been no nominee to fill this vacancy.

Additional vacancies are unlikely as no judge is eligible for senior status until Judge Scott Coogler reaches it in 2024.

Florida

Between the Northern, Middle, and Southern Districts of Florida, there are thirty seven judgeships, and two vacancies. The two currently pending vacancies are both on the Southern District of Florida. As Florida has two Republican Senators, Sen. Marcio Rubio and Florida’s Democratic House Delegation set up rival nominations commissions for the vacancies. Rubio recommended attorneys David Leibowitz and Detra Shaw-Wilder to fill the vacancies in July. The Democratic JNC also recommended Shaw-Wilder alongside state court Judges Samantha Feuer, Ayana Harris, and Miguel De La O, federal magistrate Shaniek Maynard, and federal public defender Michael Caruso. Having been recommended by both committees, it is likely that Shaw-Wilder will be nominated. However, it is unclear who the second nominee will be.

Additional vacancies are possible. Out of the thirty five active judges serving, seven are currently eligible for senior status: H.W. Bush appointees Steven Merryday and Michael Moore, Clinton appointees William Dimitrouleas and Donald Middlebrooks; and Bush appointees Timothy Corrigan, Marcia Cooke, and Jose Martinez.

Georgia

The Northern, Middle, and Southern Districts of Georgia have a total of eighteen judgeships: six appointees each of Presidents Obama and Trump; and four appointees of President Bush. There are also two vacancies on the Northern District of Georgia. Georgia Senators Raphael Warnock and Jon Ossoff began soliciting nominees for the vacancies early this year, with an application deadline of March 17, 2021. While no names have become public, it is likely that recommendations have already made their way to the White House. Additional vacancies are unlikely before 2023, unless Judge Leslie Abrams is tapped for the Eleventh Circuit to replace Martin.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Midwest

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We turn now to the Midwest.

Sixth Circuit

Court of Appeals

The Cincinnati based Sixth Circuit Court of Appeals serves the states of Kentucky, Michigan, Ohio, and Tennessee. The sixteen member court has been the site of notable squabbles between the judges, including allegations of judicial misconduct. Today, while the court has eleven Republican appointees and five Democratic appointees, the conservative-liberal divide is a closer nine to six, with Judge Julia Smith Gibbons occasionally voting with both blocs.

The Sixth Circuit also has a dramatic age divide between the conservative and the liberal wings. Of the six “liberal” judges on the court, four are already eligible for senior status. Additionally, a fifth, Judge Helene White, becomes eligible this year, while the sixth, Judge Jane Stranch, becomes eligible next year. In contrast, only two judges outside the liberal bloc are eligible for senior status, Gibbons and Judge Richard Griffin.

Despite the number of liberal judges who are eligible for senior status, there has not been an exodus in the Biden Administration. So far, no Sixth Circuit judge has officially announced their intention to take senior status or retire. Judge Bernice Donald, an Obama appointee who has been eligible for senior status since 2016, reportedly announced her move to take senior status in a letter to clerks in May. However, to date, no official announcement of the vacancy has been posted on the U.S. Courts website, and it is not unprecedented for a judge who initially decides to take senior status to subsequently change their mind.

At any rate, even without Donald, three Clinton appointees on the court have been eligible for senior status for the better part of a decade, and one or more of them could take senior status before the end of the Congress, as could Gibbons, White, or Stranch. The only eligible judge unlikely to take senior status under Biden is the staunchly conservative Griffin.

Kentucky

The Eastern and Western Districts of Kentucky are served by ten active judges, four appointed by George W. Bush, two by Obama, and four by Trump. Currently, only Judge Karen Caldwell of the Eastern District of Kentucky is eligible for senior status, although Chief Judge Danny Reeves becomes eligible on August 1, 2022. Neither is expected to take senior status in the near future.

Michigan

Michigan is divided into two judicial districts: the Eastern and Western. The Eastern District, based in Detroit and composed of 15 active judgeships, currently has two vacancies, vacated by Judge Victoria Roberts on February 24 and by Judge David Lawson on August 6. Biden has nominated Oakland County Judge Shalina Kumar to replace Roberts and Michigan Senators are currently accepting applications to replace Lawson, with a deadline of September 2. The four judgeship Western District has one vacancy, opened by Judge Janet Neff’s move to senior status March 1. Michigan Court of Appeals Judge Jane Beckering has been nominated to replace Neff. Both nominees have received a hearing before the Senate Judiciary Committee.

Additional vacancies may also be possible. Judges Denise Hood, Paul Borman, and Thomas Ludington on the Eastern District and Judge Paul Maloney on the Western District are already eligible for senior status. Additionally, Judges Sean Cox, Mark Goldsmith, and Gershwin Drain will become eligible for senior status before the end of the 117th Congress.

Ohio

Bisected into two judicial districts, Ohio federal trial courts are poised for a significant turnover. The eleven judgeship Northern District of Ohio currently has three vacancies. Ohio Senator Sherrod Brown gathered applications to fill the vacancies in February with an application deadline on March 16. So far, no recommendations have been made public and no nominations have been announced. Additionally, Chief Judge Patricia Gaughan and Judge John Adams are eligible for senior status although both have disclaimed any interest in taking it.

The Southern District has no current vacancies but Chief Judge Algernon Marbley and Judge Judge Edward Sargus are already eligible for senior status, while Judge Michael Watson will reach eligibility on November 7 and Judge Timothy Black will hit the threshold in 2022. One or more of these jurists may move to senior status before the end of the 117th Congress.

Tennessee

The citizens of Tennessee are served by three judicial districts: the Eastern, Middle, and Western Districts. None of the three districts currently have any vacancies, although there are several judges who are eligible for senior status who may take senior status before the end of 2022: Judge Thomas Varlan on the Eastern District; Judge Aleta Trauger on the Middle District; and Judges Stanley Anderson and John Fowlkes on the Western District. Additionally, Chief Judge Travis McDonough on the Eastern District is a possibility to be elevated to the Sixth Circuit to replace Donald, which would allow Biden to replace him in turn.

Seventh Circuit

Court of Appeals

The Chicago based Seventh Circuit Court of Appeals is home to many of the federal judiciary’s intellectual heavyweights. Despite having an 8-3 Republican appointee majority, the court is generally considered to be more moderate than conservative. Biden has already named one judge to the Seventh Circuit, Judge Candace Jackson-Akiwumi. He may have the opportunity to name others as four of the court’s eleven judges are eligible for senior status: Judges Frank Easterbrook, Michael Kanne, Ilana Rovner, and Diane Wood. Additionally, two more judges reach eligibility next year, Chief Judge Diane Sykes, and Judge David Hamilton. While Easterbrook and Sykes are unlikely to move to senior status in the near future, any of the other four could choose to vacate their seats before the end of the 117th Congress.

Illinois

Represented by Senate Judiciary Committee Chairman Richard Durbin, Illinois saw seats filled fairly quickly under the previous few Administrations and largely avoided the lingering vacancies that plagued other states. Currently, there is no vacancy on any of the Illinois District Courts and only one future vacancy is teed up, from Northern District Judge Matthew Kennelly’s move to senior status in October. Additional vacancies, however, are possible, as Judge Sue Myerscough on the Central District and Judges Rebecca Pallmeyer and Charles Norgle on the Northern District are eligible for senior status.

Indiana

Indiana is served by the Northern District and the Southern District, each with five active judgeships. Currently, there is one judgeship vacant in the Northern District, created by Judge Theresa Springmann’s move to senior status in January. There is also a future vacancy scheduled in the Southern District when Judge Richard Young moves to senior status upon confirmation of a successor. While Indiana’s Republican Senators accepted applications to replace Springmann in 2019, no nomination has been made as of yet. However, President Biden named U.S. Attorneys to both of Indiana’s judicial districts as part of his first batch of nominees, suggesting that judicial nominees may also be in the offing.

Wisconsin

Divided into the five judgeship Eastern District and the two judgeship Western District, Wisconsin currently has one judicial vacancy, vacated by Judge William Griesbach’s move to senior status on December 31, 2019. So far, no nomination has been put forward to replace Griesbach, although Wisconsin Senators Tammy Baldwin and Ron Johnson recommended four candidates to fill the vacancy in June: state court judges Tammy Jo Hock, William Pocan, and Thomas Walsh, and federal public defender Krista Halla-Valdes. Given the recommendations, a nominee is likely in the Fall.

Additional vacancies may also be possible. Both Judges Joseph Stadtmueller and Lynn Adelman are eligible for senior status and may choose to make the move this Congress.

Eighth Circuit

Court of Appeals

With ten judges appointed by Republican Presidents and only one appointed by a Democratic President, the Eighth Circuit is widely considered one of the most conservative courts in the country. This effect is magnified by the senior judges on the court, the vast majority of whom are also deeply conservative. If there is a bright side for liberals, it is that the lone Democratic-appointee on the court, Judge Jane Kelly, is also one of the court’s younger judges. The Eighth Circuit is currently the only court of appeals that has not had a vacancy open during the Biden Administration. If one opens, it’ll likely be due to the moves of Judges James Loken, William Benton, or Bobby Shepherd, who are the only judges currently eligible for senior status.

Arkansas

Arkansas, divided into the Eastern and Western Districts, has eight trial judgeships in total. Currently, those judgeships are filled by six appointees of President Obama, one of President George W. Bush, and one of President Trump. The only judgeship set to open this Congress is Judge Paul K. Holmes’ seat on the Western District of Arkansas, which is set to open on November 10. While Holmes gave plenty of warning, announcing his move on December 1, 2020, no nominee has been put forward by the White House. This is likely because the White House has been unable to reach an agreement with Arkansas Senators John Boozman and Tom Cotton. While, during the Obama Administration, Boozman supported and returned blue slips for five District Court nominees, including Holmes, Cotton has yet to approve any Arkansas nominee from a Democratic President. As such, it remains to be seen if a nominee can be put forward to fill the vacancy.

Iowa

The judges on the Northern and Southern Districts of Iowa are comparatively young, with four out of five being under the sixty (and two under the age of fifty). The lone exception is Judge John Jarvey who has announced his intention to retire on March 18, 2022. Given Iowa Senator Chuck Grassley’s role as Ranking Member of the Senate Judiciary Committee, the White House is likely to consult with him on Jarvey’s replacement. So far, no recommendations have been made public.

Minnesota

The U.S. District Court for the District of Minnesota has one vacancy, created when Judge Joan Ericksen moved to senior status on October 15, 2019. Senators Amy Klobuchar and Tina Smith sent a shortlist of candidates to fill the vacancy to the White House in early January but no nomination has been officially submitted yet. To compound the issue, additional vacancies may soon open as Chief Judge John Tunheim, who is eligible for senior status, steps down as Chief next year and as Judge Susan Nelson hits eligibility later this year.

Missouri

The Eastern and Western Districts of Missouri share an interesting quirk: they have sixteen active judgeships between them but only fourteen active judges. This is because two of the judges, Judge Rodney Sippel and Judge Brian Wimes, sit on both the Eastern and Western Districts. Counting each judge only once, the Districts are composed of eight Obama appointees, three Trump appointees, two Bush appointees, and one Clinton appointee. While there are no current vacancies, Sippel and Judge Henry Autrey are both eligible for senior status.

Nebraska

While currently without a vacancy, the District of Nebraska has an informal policy of judges moving to senior status as soon as they hit eligibility in order to best handle the caseload. The first judge to hit that eligibility threshold is Judge John Gerrard, who will hit it by the end of 2022.

North Dakota

With the two judgeships in North Dakota having been filled recently by President Trump, it’s extremely unlikely that either will open this Congress.

South Dakota

The three judgeship District of South Dakota is currently composed of two appointees of President Obama and one of President Clinton. It is set to have a vacancy open on October 1 when Judge Jeffrey Viken moves to senior status. In addition to Viken, Judge Karen Schreier became eligible for senior status on July 29 and may make the move as well. In April 2021, South Dakota Democratic Party Chairman Randy Seiler submitted three names to fill the vacancy: former Congresswoman Stephanie Herseth Sandlin; Cheyenne River Sioux Tribe Attorney General Tracey Zephier; and federal prosecutor Sarah Collins. A few weeks later, Herseth Sandlin took her name out of consideration. No nominee has been named to replace Viken yet.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Atlantic Coast

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. Last week, we covered the states in the Northeast. We move on to the Atlantic Coast.

Third Circuit

Court of Appeals

The fourteen judgeship Third Circuit, covering the states of Delaware, New Jersey, and Pennsylvania, has ping-ponged between narrow majorities of Republican-appointed and Democrat-appointed judges over the last two decades. Nonetheless, it has maintained a reputation for collegiality and moderation. Currently, the court has four judges appointed each by Presidents Bush, Obama, and Trump and two judges appointed by President Clinton. The Court has one vacancy for President Biden to fill, to be vacated by Clinton-appointee Theodore McKee upon confirmation of his successor. With McKee’s announcement coming just a couple of weeks ago, a nomination will likely not be made until October or November at the earliest.

Other than McKee, two judges are currently eligible for senior status. Chief Judge D. Brooks Smith, a moderate appointed by President Bush, has been a federal judge since 1988, has been eligible for senior status since 2016, has announced his selection as Penn State Law’s jurist in residence, and will end his tenure as Chief on December 4, 2021 (his 70th birthday). All of these signs suggest that Smith will either take senior status or retire upon the conclusion of his term as Chief, but this is, by no means, guaranteed. The other eligible judge is Clinton-appointee Thomas Ambro, who has made no indications that he plans to vacate his Delaware-based seat.

Furthermore, two more judges become eligible for senior status next year. Bush appointee Kent Jordan, based in Delaware, becomes eligible for senior status on October 24, 2022, and may choose to vacate his seat at that time. Obama appointee Joseph Greenaway has been a federal judge since 1996 and may choose to vacate his New Jersey based seat upon eligibility on November 16, 2022. Either way, it would not be surprising if an additional vacancy opened on the Third Circuit before the end of the 117th Congress.

Delaware

In theory, the district court in the President’s home state is unlikely to see any vacancies this Congress. However, both Judges Leonard Stark and Maryellen Noreika have been proposed as nominees to the Federal Circuit, and both could also be considered for the Third Circuit if Ambro or Jordan moved to senior status. If either or both are nominated, the resulting vacancies could allow Biden to expand his impact on the local district court.

New Jersey

Due to a standoff between New Jersey Senators Robert Menendez and Cory Booker and the Trump Administration, no judges were appointed to the District of New Jersey in the last four years. As a result, when Biden came into office, six out of the seventeen judgeships on the court were vacant. Since then, Biden has filled two of the vacancies, with Judges Julien Neals and Zahid Quraishi. Two more nominees, Christine O’Hearn and Judge Karen Williams, are currently pending on the Senate floor, while two vacancies, both in Newark, remain without nominees.

Of the eleven active judges on the court, only one, Chief Judge Freda Wolfson, is eligible for senior status, although Judge Noel Hillman will hit eligibility on December 22 of this year. Wolfson, a Democrat appointed to the Court by President Bush, may choose to serve out her term as Chief (in 2024), while Hillman, another Bush appointee, has made no announcements about taking senior status.

Pennsylvania

Pennsylvania is divided into three district courts: the Eastern District, based in Philadelphia; the Western District, based in Pittsburgh; and the Middle District, based in Harrisburg. Traditionally, Pennsylvania senators divided judicial nominations on a 3-1 ratio, with the White House appointing one judge of the opposing party for three of their own party. Examples of cross-party appointments include Judges Yvette Kane and R. Barclay Surrick under President Clinton; Judges Legrome Davis, Timothy Savage, David Cercone, and C. Darnell Jones under Bush; Judges Matthew Brann, Jeffrey Schmehl, Edward Smith, and Jerry Pappert under Obama; and Judges Susan Baxter, Robert Colville, and John Milton Younge under Trump. This tradition is expected to continue under Biden.

Currently, there are four vacancies on the Eastern District, and one vacancy on the Middle District. Pennsylvania Senators Bob Casey, a Democrat, and Pat Toomey, a Republican, opened applications for the Eastern District in January 2021 with a February 8 application deadline. They similarly opened applications for the Middle District vacancy in June 2021 with an application deadline of July 8, 2021. In the past, Casey and Toomey refrained from making their recommendations public, and, as such, no names are expected to come to light until announced by the White House.

In addition to the current vacancies, a number of judges are eligible for senior status. Specifically, Chief Judge Juan Sanchez, and Judges Cynthia Rufe, Gene Pratter, and Paul Diamond on the Eastern District are currently eligible to take senior status. Additionally, in October, Judge Robert Mariani on the Middle District becomes eligible for senior status. Judge Christopher Conner of the Middle District also reaches eligibility on October 25, 2022. In contrast, the Western District is unlikely to see any vacancies open this Congress, as the earliest any judge reaches eligibility is in 2024.

Fourth Circuit

Court of Appeals

The Fourth Circuit Court of Appeals used to have a reputation as one of the most conservative courts in the country. However, after President Obama named seven judges to the court in his two terms, the Court underwent an ideological transformation. Today, the Court frequently divides into a 9-6 liberal-conservative divide in en banc votes. The Fourth Circuit currently is composed of Judge J. Harvie Wilkinson, a Reagan appointee; Judge Paul Niemeyer, a George H.W. Bush appointee; Judges Diana Motz, Robert King, and Roger Gregory, Clinton appointees (although Gregory was confirmed as a George W. Bush appointee, he was recess appointed to the Court by President Clinton); Judge Steven Agee, a George W. Bush appointee; Judges Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris, Obama appointees; and Judges Julius Richardson, Marvin Quattlebaum, and Allison Rushing, Trump appointees.

Of the 15 judges on the court, eight are currently eligible for senior status, and a ninth becomes eligible next year. However, despite this, only one vacancy has been announced so far on the court, with Keenan taking senior status on August 31, 2021. Biden has already nominated Virginia Solicitor General Toby Heytens to replace Keenan. After a smooth confirmation hearing, Heytens is expected to reach the Senate floor in September, with a final confirmation vote by the end of October. Given the sheer number of Fourth Circuit judges who are eligible for senior status, it would not be surprising to see an additional vacancy or two open up before the end of the 117th Congress.

Maryland

The U.S. District Court for the District of Maryland has already undergone a change in the current Administration, as Biden has named two judges to the court: Lydia Griggsby and Deborah Boardman. In addition, the ten judgeship court has a third vacancy that awaits a nomination: with Judge Ellen Lipton Hollander taking senior status upon confirmation of a successor. A fourth vacancy could potentially open next year as Judge Paul Grimm becomes eligible for senior status on December 6, 2022.

North Carolina

While the three judicial districts that cover North Carolina (the Eastern, Middle, and Western) do not currently have any vacancies, two judges are eligible for senior status, Judge Terrence Boyle on the Eastern District, an appointee of President Reagan, and Judge Max Cogburn, an appointee of President Obama. As such, there remains the possibility that additional vacancies may open in North Carolina this Congress.

South Carolina

The U.S. District Court for the District of South Carolina currently lacks judicial vacancies and only has one judge eligible for senior status, George H.W. Bush appointee David Norton. However, a vacancy may also open next year if Judge Juliana Michele Childs is elevated to the Fourth Circuit or if Judge Richard Gergel takes senior status upon reaching eligibility.

Virginia

Divided between the Eastern and Western Districts, Virginia is served by 15 active judgeships. Currently, Virginia has three Clinton appointees, one Bush appointee, five Obama appointees, and four Trump appointees, with the remaining two judgeships vacant. Thanks to swift recommendations made by Virginia Senators, both vacancies have nominees: federal prosecutor Patricia Giles; and Magistrate Judge Michael Nachmanoff. However, an additional two vacancies are scheduled to open later year, when Judges James Jones and John Gibney move to senior status. Earlier this month, Senators Mark Warner and Tim Kaine recommended U.S. Magistrate Judge Robert Ballou and Chief Federal Defender Juval Scott as prospective nominees to replace Jones on the Western District. Warner and Kaine also accepted applications to fill Gibney’s seat with a deadline of July 19, but no recommendations have been made yet.

Additional vacancies are also possible, as Judges Leonie Brinkema and Raymond Jackson on the Eastern District are eligible for senior status.

West Virginia

Despite being a small state, West Virginia is covered by two judicial districts, the Northern and Southern. Between them, the two districts have two judges appointed each by Presidents Clinton, Bush, Obama, and Trump. Of those judges, Judges Joseph Goodwin and Robert Chambers, the two Clinton appointees, and Judge John Bailey, a Bush appointee, are currently eligible for senior status. Additionally, Judge Irene Berger, an Obama appointee, joins them in eligibility next year. Given that fact, it would not be surprising if one or more vacancies opened in West Virginia before the end of the 117th Congress.

D.C. Circuit

Court of Appeals

The oft-described “second highest court in the country”, the D.C. Circuit is considered by many to be the first among equals in the federal Courts of Appeal. As currently composed, the Court has eleven active judges, four appointed by President Obama, three by President Trump, two by President Clinton, and one each by Presidents George H.W. Bush and Biden. While Biden has already named Judge Ketanji Brown Jackson to replace now-Attorney General Merrick Garland, he has a second vacancy to fill. Judge David Tatel, who has served on the court since 1994, announced in February his intent to take senior status upon the confirmation of a successor. So far, no nominee has been put forward to replace Tatel, unusual given that the D.C. Circuit does not require negotiating with home state senators before making a nomination.

Other than Tatel, two judges on the D.C. Circuit are currently eligible for senior status: Bush appointee Karen Henderson; and Clinton appointee Judith Ann Wilson Rogers. Both have been eligible for years and have declined to make the move under Presidents of both parties. While either could take senior status this Congress, it would not be surprising to see both continue to be active for a few more years.

Additionally, there is always the possibility that, if a vacancy opens on the U.S. Supreme Court, Jackson is elevated and Biden gains the opportunity to fill her seat and maintain the court’s narrow liberal majority.

District of Columbia

The U.S. District Court for the District of Columbia is the sole trial court that feeds into the D.C. Circuit. It is also a court of many firsts: the first Article III trial court to have a female judge, and the first Article III trial court to have an African American judge. Today, the 15-member court has two vacancies, both with pending nominees on the Senate floor: D.C. Superior Court Judge Florence Pan; and civil rights attorney Jia Cobb. Of the remaining judges on the court, only one, Judge Colleen Kollar-Kotelly, is eligible for senior status. Barring any moves on her part, additional vacancies are unlikely.

Federal Circuit

Court of Appeals

The Federal Circuit is the newest kid of the block in terms of federal courts, having only been created in 1982. Unlike other federal courts of appeal, which hear appeals from geographic areas, the Federal Circuit is specialized by subject matter, hearing patent cases, as well as appeals from a variety of Article I and Article III tribunals. It is also the only circuit not to see a vacancy during the Trump Administration. However, so far, only eight months into the Biden Administration, it has already seen two. The first, opened by Judge Evan Wallach’s move to senior status in May, has already been filled by Judge Tiffany Cunningham. The second will open next March when Judge Kate O’Malley, an Obama appointee like Wallach, will retire. No nominee has been named for the second vacancy so far.

There is significant potential for additional turnover on the Federal Circuit. Setting aside O’Malley, another four judges on the Circuit are eligible for senior status: Judges Pauline Newman, Alan Lourie, Timothy Dyk, and Sharon Prost. Three of the four are over eighty years old, with one, Judge Newman, being 94 (and the oldest active judge on the Federal Courts of Appeal). Furthermore, Judge Jimmie Reyna, an Obama appointee, becomes eligible for senior status next year, creating another potential vacancy. To be fair, it is unlikely that all of these seats will open. However, the last time that the Federal Circuit had so many judges poised for senior status eligibility, in the late 2000s, then President Obama named seven judges to the Court. For his part, Biden already has the opportunity to name two and will likely get at least one more vacancy before the end of the 117th Congress.

Court of International Trade

The United States Court of International Trade adjudicates civil actions arising from customs and trade laws, and its cases feed into the Federal Circuit on appeal. The Court is composed of nine judges, and, by statute, no more than five of those can be of the same political party. As a result, Presidents frequently make cross-party appointments to avoid violating this threshold. Currently, the court has four Obama appointees, three Trump appointees, and two vacancies. There are currently two-cross party judges on the court: Obama appointee Jennifer Choe-Groves; and Trump appointee Timothy Reif. Thus, Biden cannot fill both vacancies on the court with Democrats. Of the judges serving on the bench, none is close to eligibility for senior status, which makes it unlikely that additional vacancies will open on the Court in the next year.

Court of Federal Claims

After years of chronic shortages, a surge of confirmations late in the Trump Presidency brought the Court of Federal Claims down to just three vacancies by the time Biden was sworn in. Since then, a fourth vacancy has opened with Judge Lydia Griggsby’s confirmation to the District of Maryland. Of the four vacancies, two have nominees: Armando Bonilla and Carolyn Lerner. With an overwhelming majority of the court having been appointed over the last two years, no new vacancies are expected on the court after the current ons are filled.

Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Northeast

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. We start with the states in the Northeast.

First Circuit

Court of Appeals

With just six active judgeships, the First Circuit is the smallest court of appeals in the nation, and the only geographically based appellate court that President Trump did not name a single judge to. The First Circuit tends to cycle between periods of significant turnover and periods of relative stability. For example, President George H.W. Bush named four judges to the court in four years in office. President Clinton then named two over eight years and President George W. Bush named just one in his eight. President Obama then replaced half the court in his two terms, followed by President Trump who named none.

Today, the court has five active judges: one appointed by Clinton; one by Bush; and three by Obama. A sixth judgeship, vacated by the death of Judge Juan Torruella last year is currently vacant, with a nominee, U.S. District Judge Gustavo Gelpi, waiting for a final confirmation vote on the Senate floor. However, a second vacancy is already teed up as the Rhode Island based Judge Ojetta Rogeriee Thompson is taking senior status on December 31, 2021. Rhode Island senators have already set up a selection process with the deadline set on August 4. This timeline could yield a new nominee by October 2021 and potentially even a confirmation by the end of the year.

More vacancies are possible this Congress. Judge Sandra Lea Lynch, appointed by President Clinton, has been eligible for senior status since 2011. Chief Judge Jeffrey Howard, the sole Republican appointee on the court, is also eligible for senior status but will likely stay active until his term as Chief concludes next year. However, even if neither moves to senior status, Biden will still have a chance to replace a third of the court.

Maine

The three judgeship District of Maine is unlikely to see much turnover this Congress, as the first judge to hit eligibility for senior status, Chief Judge Jon Levy, won’t hit it until 2024. His colleagues Nancy Torresen and Lance Walker have much longer to wait: until 2025 and 2037 respectively.

Massachusetts

The 13-judgeship District of Massachusetts is currently three judges short, with a nominee, Judge Angel Kelley, pending to the oldest vacancy. Kelley’s nomination was the product of a January 2021 convening of a Bipartisan Advisory Committee by Massachusetts Senators Elizabeth Warren and Ed Markey. The Committee was reconvened in March to produce nominees to replace Judge William Young, who was leaving active status. Presumably, the Committee has recommended candidates to fill the remaining vacancies on the court, which means that nominees may be forthcoming in the Fall.

Of the remaining ten active judges on the court, four are already eligible for senior status and a fifth, Judge Timothy Hillman, becomes eligible next year. As such, it is possible that more vacancies could open before the end of this Congress.

New Hampshire

The District of New Hampshire currently has one vacancy, opened by Judge Paul Barbadoro’s move to senior status on March 1. So far, there has not been a public announcement from New Hampshire’s senators on the selection process, and no nomination has been made.

Puerto Rico (not technically in the Northeast but covered under the First Circuit)

The District of Puerto Rico currently has one vacancy out of seven judgeships, but two others are poised to come open. Judge Gustavo Gelpi has been named to the First Circuit and is pending confirmation, and Judge Francisco Besosa has announced his intent to take senior status on January 1, 2022. The resulting three nominations, when they come, will encompass the largest turnover on the court since 2006 when Gelpi and Besosa were appointed. The third appointee from 2006, Judge Aida Delgado-Colon, is also eligible from senior status. If she so moved, Biden would have an opportunity to name a majority of judges on the court.

Rhode Island

Like it’s counterpart in Maine, the District Court for the District of Rhode Island has three judgeships, all of whom are not eligible for senior status this Congress. As such, no vacancies are expected this Congress unless Judge Mary McElroy, a longtime public defender and Democrat named to the court by Trump, is picked to replace Thompson on the First Circuit.

Second Circuit

Court of Appeals

The Second Circuit, based in New York, is one of the most prestigious court of appeals in the federal system. The Court, which has two vacancies, is closely divided ideologically. The active judges on the court are split 7-4 in favor of the court’s conservative wing, but this is mitigated by the senior judges, who sit frequently and include many prominent liberals. Biden has already named Judge Eunice Lee to the court and both the pending vacancies have nominees: voting rights attorney Myrna Perez and Vermont Supreme Court Justice Beth Robinson.

Setting aside Lee, the active judges on the Second Circuit include five appointees of President Trump (who are all years away from senior status), Chief Judge Debra Livingston (who is expected to serve out her term as Chief until 2027); and Obama appointee Raymond Lohier (who doesn’t hit eligibility until 2030). While it would be tempting to consider Judges Jose Cabranes and Rosemary Pooler, the last remaining of nine judges appointed to the Court by Bill Clinton, as likely moves to senior status, the judges (both octagenarians) have resisted senior status for years despite being eligible to do so. A more likely candidate to move to senior status is Obama-appointee Judge Susan Carney, who hits eligibility in September 2021.

Connecticut

The District of Connecticut currently has three vacancies out of eight judgeships. However, unlike most other states, all of Connecticut’s vacancies have nominees: U.S. Magistrate Judge Sarah Merriam; state judge Omar Williams; and federal prosecutor Sarala Nagala. The expected confirmation of the three this Fall would restore the court to a full complement of eight. However, Chief Judge Stefan Underhill is also eligible for senior status and may take it, creating an opportunity for a fourth appointment (It’s just as likely that Underhill serves out his term as Chief, which ends in 2025).

New York

One of only three states to be divided into four federal judicial districts, New York is currently bogged with a number of judicial vacancies. During the Obama Administration, Senators Chuck Schumer and Kirsten Gillibrand split up making recommendations to fill vacancies and each publicized names as they were sent to the White House. So far, Schumer has only made one district court recommendation public: voting rights attorney Dale Ho for the Southern District of New York (Ho has yet to be nominated).

Meanwhile, vacancies remain, with only the Western District of New York having a full complement of active judges. The Southern District of New York, one of the busiest courts in the country, is short four judges, with two of the vacancies dating back to 2018. The Eastern District of New York, despite having around half as many judgeships as its neighbor, also has four vacancies. The Northern District has only one vacancy, but, dating back to 2016, it’s one of the oldest vacancies in the nation.

Additionally, more vacancies may open in the coming year. Currently, three judges are eligible for senior status but have held off: Judge John Koeltl; Judge David Hurd; and Judge William Kuntz. Next year, three more become eligible: Judges Kiyo Matsumoto; Roslyn Mauskopf; and Glenn Suddaby.

Vermont

Vermont is one of only three states in the country to be served by only two district court judges (Idaho and North Dakota being the others). With both of Vermont’s judges a few years from eligibility for retirement, it is unlikely that any vacancies will open on the district court this Congress.

Justice Beth Robinson – Nominee to the U.S. Court of Appeals for the Second Circuit

A pioneer in shaping the litigation and legislative strategy behind same-sex marriage, Beth Robinson made history in 2011 as the first openly LGBT Justice on the Vermont Supreme Court. She is now poised to make history again as the first openly LGBT judge on the Second Circuit.

Background

Born March 6, 1965, Beth Robinson graduated from Dartmouth College in 1986 and the University of Chicago Law School in 1989. After graduating, Robinson clerked for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit and then joined the D.C. Office of Skadden, Arps, Slate, Meagher & Flom as an associate.

In 1993, Robinson joined Langrock Sperry & Wool in Vermont. In 2010, newly elected Democratic Governor Peter Shumlin chose Robinson to be his counsel. A year later, Shumlin named Robinson to the Vermont Supreme Court, where she currently serves.

History of the Seat

Robinson has been nominated for a Vermont seat on the U.S. Court of Appeals for the Second Circuit. This seat was vacated by Judge Peter Hall, who moved to senior status on March 4, 2021 (Hall tragically passed away shortly after).

Legal Career

Robinson spent most of her career in private practice, although she did spend a few months as Counsel for Gov. Peter Shumlin before he appointed her to the Supreme Court.

Notably, while in private practice, Robinson was instrumental in shaping the legislative and litigation strategy to bring marriage equality to Vermont. In 1999, Robinson successfully argued before the Vermont Supreme Court that the Vermont Constitution prohibited restricting same-sex couples from the benefits of marriage. Baker v. State, 744 A.2d 864 (Vt. 1999). Robinson continued her work as an advocate for same-sex marriage on the legislative front throughout the 2000s until she was tapped by Shumlin. See, e.g., John Curran, In Vermont, Gay Marriage Debate Keeping It Civil, A.P. State * Local Wire, Jan. 13, 2008.

Jurisprudence

Robinson has served on the Vermont Supreme Court for the past decade. Her record on the bench is generally liberal but within the Court’s mainstream. Below, we have summarized some of the key features of her jurisprudence:

Negligence and Civil Liability

On the bench, Robinson has generally read civil liability broadly to allow matters to reach a jury. For example, in 2013, Robinson wrote for a unanimous court in finding that summary judgment should not have been granted to an insurer over an accident caused by a permittee to whom the insured owner loaned the car. See State Farm Mutual Automobile Co. v. Colby, 2013 VT 80.

Criminal Procedure

Robinson has also read criminal procedural protections broadly, cabining prosecutions. For example, she wrote for the court in holding that the mere fact of a motorist stopping his car in a remote location did not create grounds for a trooper to make a traffic stop. State v. Button, 2013 VT 92. Robinson also overturned Shamel Alexander’s conviction for heroin trafficking, finding that law enforcement violated Alexander’s Fourth Amendment rights in stopping and searching him. Vermont v. Alexander, 2016 VT 19.

Criminal Law

Robinson has generally read criminal statutes narrowly. For example, Robinson wrote for a divided 3-2 court in overturning a man’s conviction of harassment, holding that Vermont law required threats of violence in order for conduct to qualify under the statute. State v. Waters, 2013 VT 109. Robinson also wrote for the court in throwing out a state prisoner’s conviction for illegally practicing law after she assisted other inmates with filing legal claims. In re Serendipity Morales, 2016 VT 85.

Furthermore, Robinson dissented from the Supreme Court’s 3-2 decision upholding Justin Kuzawski’s conviction for assault with a deadly weapon, writing that, in her view, the safety boxcutter that Kuzawski brandished did not qualify under the statute. See State v. Kuzawski, 2017 VT 118. She was also part of a panel that held that Jack Sawyer, accused of planning a school shooting, could not be held without bail. See Sadie Housberg, VT Supreme Court: Sawyer Cannot Be Held Without Bail, Middlebury Campus, Apr. 18, 2018.

In contrast, Robinson upheld Latonia Congress’ conviction for murder, finding that the trial judge was correct in declining to instruct the jury that they could reduce the charge to voluntary manslaughter. State v. Congress, 2014 VT 129. Chief Justice Paul Reiber dissented, arguing that common law retained the discretion to reduce such charges in the jury. See id. Robinson also dissented from a decision tossing a conviction for posting KKK recruitment posters on the apartment doors of black women. See State v. Schenk, 2018 VT 45. Notably, Robinson wrote for a 4-1 court (with Chief Justice Marilyn Skoglund in dissent) upholding Vermont’s revenge porn law against a constitutional challenge. State v. Van Buren, 2018 VT 95.

Writings and Statements

Given her prominence in the marriage equality fight in Vermont, Robinson has spoken and written a number of times regarding the issue. For example, in 2009, Robinson moderated a panel at Dartmouth College on the subject, where she noted that she was working on the issue’s legal strategy as early as 1994. See Same-Sex Marriage in Law and Society: Dartmouth College’s Law Day Program 2009: Transcript of Law Day Panel, 34 Vt. L. Rev. 243 (Winter 2009). She also participated in a symposium on marriage law for the Michigan Journal of Gender & Law. See 10 Mich. J. Gender & L 21, 27 (2003). Her remarks have (understandably) been strongly supportive of marriage equality. For example, in a speech at Seton Hall Law School, Robinson noted the impact of laws that discriminate based on sexual orientation:

“The law also tells a story…Before July 1, 2000, the story told by the laws of every state in this country was that committed, loving same-sex couples don’t exist, or if we do, our relationships have no value, and aren’t worthy of equal treatment under the law.” Beth Robinson, The Road to Inclusion for Same-Sex Couples: Lessons From Vermont, 11 Seton Hall Const. L. J. 237 (Spring 2001).

Robinson has also worked on the legislative battle for same-sex marriage, speaking out against bills to define marriage as only between a man and a woman. See Bill Would Define Marriage as Union of Man and Woman, A.P. State & Local Wire, Mar. 10, 1999. Robinson also advocated in favor of Vermont’s civil union bill, see Ross Sneyd, Sweeping Civil Union Bill Passes; Governor Will Sign It Into Law, A.P. State & Local Wire, Apr. 25, 2000, and later, Vermont’s gay marriage law. See John Curran, In Vermont, Gay Marriage Debate Keeping It Civil, A.P. State * Local Wire, Jan. 13, 2008.

Not all of Robinson’s writings have focused on the issue of same-sex marriage. In 1999, Robinson authored an article discussing negligence law affecting skiers injured on the slopes, and noting that Vermont caselaw generally leaves releases of liability unenforceable as a matter of public policy. See Beth Robinson, Playing it Safe: Allocating the Risk of Harm on the Slopes, 25 Ver. B. J. 15 (Mar. 1999).

Overall Assessment

With a decade of experience on Vermont’s highest court and more than two decades in litigation, Robinson will likely be deemed to be qualified for a seat on the Second Circuit. However, her advocacy on the same-sex marriage front, as well as her left-leaning record on the Supreme Court, may make her a controversial nominee to some senators. Nonetheless, there is little in Robinson’s record that would cause Democratic support to vanish, and, as such, her nomination will likely be confirmed by the end of the year.

Judge Mary Katherine Dimke – Nominee to the U.S. District Court for the Eastern District of Washington

The U.S. District Court for the Eastern District of Washington is poised to get a new judge, with the Biden Administration putting forward the nomination of Judge Mary Katherine Dimke to fill a vacancy that’ll open on the court in October.

Background

Mary Katherine Dimke received her B.A. magna cum laude from Pepperdine University in 1999 and a J.D. from Vanderbily University Law School in 2000. Dimke then clerked for Judge Alan Johnson on the U.S. District Court for the District of Wyoming and then clerked for Judge Richard Tallman on the U.S. Court of Appeals for the Ninth Circuit.

After her clerkships, Dimke joined the Department of Justice Honors Program and worked in the Criminal Division. In 2008, Dimke became a federal prosecutor in Washington.

In 2016, Dimke was appointed to be a federal magistrate judge in the U.S. District Court for the Eastern District of Washington, where she currently serves.

History of the Seat

Dimke has been nominated for the U.S. District Court for the Eastern District of Washington. This seat will open on October 1, 2021, when Judge Rosanna Peterson moves to senior status.

Legal Experience

Before becoming a judge, Dimke worked for the federal government for twelve years, moving from the Criminal Division of the Department of Justice to the U.S. Attorney’s Offices in the Western and Eastern Districts of Washington. During her time at the offices, Dimke worked primarily on fraud and corruption prosecutions.

Among her most significant cases, Dimke prosecuted Christian Sapsizian, an Alcatel executive, for paying $2.5 million in bribes to Costa Rican officials in order to obtain a government contract. Sapsizian ended up pleading guilty to two counts of violating the Foreign Corrupt Practices Act. Similarly, while with the Western District of Washington, Dimke prosecuted Eddie Goodridge, the executive director of the Stillaguamish Indian tribe, for conspiring to sell contraband cigarettes. See Lynn Thompson, Tribal Head Pleads Guilty to Cigarette Trafficking, Seattle Times, Nov. 21, 2008. Dimke also prosecuted co-conspirators Carol Silverman and Rick Conn, among others, for the same scheme. Additionally, Dimke prosecuted conspirators who faked the origin of imported Chinese honey to avoid tariffs. See Tim Klass, Prosecutors Say Men Lied About Source of Honey, A.P. State & Local Wire, May 7, 2009.

Jurisprudence

Since 2016, Dimke has served as a U.S. Magistrate Judge in the Eastern District of Washington. In this role, Dimke presides over settlement, preliminary hearings, bail, and any cases where the parties consent to his jurisdiction.

Among the notable matters she has handled, Dimke affirmed the denial of social security benefits for Clarinda Gopher, finding that the ALJ did not err in holding that Ms. Gopher did not suffer from disabling symptoms. See Gopher v. Comm’r of Soc. Sec., 281 F. Supp. 3d 1102 (E.D. Wash. 2017).

Overall Assessment

So far, the Biden nominees who have attracted the most controversy have generally come from criminal defense or civil rights backgrounds. As a former government attorney with five years as a judge under her belt, Dimke should be deemed a relatively uncontroversial choice for the federal bench.

Charlotte Sweeney – Nominee to the U.S. District Court for the District of Colorado

Colorado Senators have, compared to other states, moved swiftly to recommend candidates for judicial vacancies. With the announcement that Judge Richard Brooke Jackson was moving to senior status in September 2021, recommendations reached the White House swiftly and the White House chose employment attorney Charlotte Sweeney, who has a decent chance of being confirmed in time to replace Jackson as he comes off the bench.

Background

Sweeney received a B.S. from California Lutheran University in 1991 and a J.D. from the Sturm College of Law in 1995. She then joined LaFond & Clausen P.C. as an attorney, with the firm being renamed LaFond & Sweeney in 1998 when she became a partner.

In 2008, the partnership dissolved and Sweeney has been practicing at Sweeney & Bechtold LLC.

History of the Seat

Sweeney has been nominated for a vacancy on the U.S. District Court for the District of Colorado. This seat will open when Judge R. Brooke Jackson moves to senior status on September 30, 2021. Colorado Senators Michael Bennet and John Hickenlooper recommended Sweeney alongside U.S. Magistrate Judge Nina Wang and commercial attorney Kenzo Kawanabe on May 30, 2021. Sweeney was nominated for the vacancy on August 5, 2021.

Legal Experience

Sweeney has spent virtually her entire career as an employment attorney, primarily representing plaintiffs alleging violations of Title VII, the ADA, the ADEA, and other discrimination statutes.

Among the more notable cases she has handled, Sweeney represented Edward Garcia, a funeral home employee, who alleged that the home discriminated against him based on gender and national origin by promoting a “less-qualified” woman to a manager role that he wanted. See Pueblo, Colo. Funeral Home Worker Settles Reverse-Discrimination Suit, The Pueblo Chieftain, Dec. 31, 1999. She also represented United employee Glenn Cox who claimed that he was fired for being a whistleblower regarding the company’s failure to enforce size restrictions on baggage. See Former United Employee Sues Over Firing, A.P. State & Local Wire, Sept. 15, 2000.

In other matters, Sweeney secured a $64,000 settlement for Boulder Parks & Recreation worker Sally Deitrich, who alleged that she was discriminated against after revealing that she recently married her wife. See Alex Burness, Boulder to Pay $64K Settlement to Lesbian Ex-Employee Who Alleged Discrimination, Colorado Daily, June 24, 2016.

Sweeney, notably, was also a litigant in a suit against former law partner Richard LaFond seeking a portion of a contingent fee arrangement upon dissolution of the partnership. See LaFond v. Sweeney, 343 P.3d 939 (Colo. 2015). The suit made its way to the Colorado Supreme Court, which held that Sweeney was entitled to a portion of the fee recovered. See id. at 941.

Overall Assessment

Biden’s first nominee to a Colorado vacancy, Regina Rodriguez was confirmed with bipartisan support. While Sweeney may draw more opposition than Rodriguez did, she is still unlikely to draw enough rancor to threaten her nomination and should be confirmed in the fall. Her confirmation would make Sweeney the first openly LGBT federal judge in Colorado.

Armando Bonilla – Nominee to the U.S. Court of Federal Claims

Despite having six appointees confirmed to the court in 2020 alone, the U.S. Court of Federal Claims (CFC) has been battling a long-term vacancy crisis, with four seats on the court vacant. In an effort to fill them, President Biden has renominated a stalled nominee from the Obama Administration: Armando Bonilla.

Background

Born in 1967 in New York City, Armando Omar Bonilla received his B.A. from West Virginia University in 1989 and his J.D. from Seton Hall University School of Law in 1992. After graduation, Bonilla clerked for Judge Garrett Brown for the U.S. District Court for the District of New Jersey.

After his clerkship, Bonilla joined the Civil Division of the U.S. Department of Justice as a trial attorney. In 2001, he moved to the Criminal Division, starting in the Asset Forfeiture and Money Laundering Section and moving to the Public Integrity Section. In 2010, Bonilla joined the Deputy Attorney General’s Office.

Since 2018, Bonilla has served as Vice President of Ethics and Investigations at Capital One.

History of the Seat

Bonilla has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government. Judges to the CFC are appointed for 15-year terms, and can be reappointed. The seat Bonilla is nominated for opened up on October 22, 2013, with the retirement of Judge Edward Damich. On May 21, 2014, Bonilla was nominated for this seat by President Obama. Bonilla and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously. However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges. Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant.

On June 24, 2019, the Trump Administration nominated Daniel Zachary Epstein, a Special Assistant to the President, to fill this seat. However, Epstein’s nomination stalled in the Senate and he was never confirmed.

Bonilla was subsequently renominated to fill this vacancy on July 13, 2021.

Legal Experience

Bonilla has spent virtually his entire legal career working in the Department of Justice, where he worked on civil, criminal, and appellate litigation.

Notably, on the civil side, Bonilla represented the United States in defending against a lawsuit by the architects hired to design the Museum of the American Indian, alleging that the contract was wrongfully terminated. See GBQC Architects v. United States, No. 98-399C (Fed. Cl.) (Judge Miller). Bonilla also defended the Department of Veterans Affairs decision not to permit the display of a large Confederate flag at a national cemetery against a First Amendment challenge. See Griffin v. Secretary of Veterans’ Affairs, 288 F.3d 1309 (Fed. Cir.).

Among the criminal cases he handled, Bonilla prosecuted Katherine Stump, a New Orleans Sewarage and Water board member for conspiracy and wire fraud for accepting cash and gifts in exchange for promoting the interests of a Houston sewage company. See Pam Easton, New Orleans Water Board Chair, Contractor Sentenced to Prison for Wire Fraud, Conspiracy, A.P. State & Local Wire, Sept. 29, 2003.

Overall Assessment

The fact that Bonilla’s last appointment to the Court of Federal Claims stalled speaks more to the Senate’s intransigence on judicial nominees late in the Obama Administration than it does to Bonilla. With a Senate majority more willing to consider CFC nominees, Bonilla should be confirmed before the end of the year.