So it’s finally here.  After nearly eight years, and more than four hundred nominee profiles, it’s time to close the final chapter on the Vetting Room.  When I first started the Vetting Room eight years ago, I wrote my hopes that this blog would be a way to “inform the general public about candidates for the federal bench.”  I think we’ve succeeded in doing that.  I also hoped that, by providing “disinterested” commentary (in the sense that we’re not advocating for or against individual nominees), the Vetting Room could be a part of de-escalating confirmation tensions and supporting an apolitical judiciary.

Reflecting back, there is much to be proud of.  I never expected that a small legal blog started by a nobody with some assistance from his friends and associates would become one of the most widely searched resources on judicial nominees.  Furthermore, I’ve received messages of praise and support from prominent liberals and conservatives who have praised the tone and content of our write-ups.  Similarly, I’ve fielded angry messages and comments both from folks convinced that we’re secretly suppressing unfavorable information on nominees and from those accusing us of writing hit pieces, in one case, addressing a single article.  Needless to say, we must be doing something right.

I’m also thankful for all the support we’ve gotten, not just from the amazing attorneys who wrote for us, but also from attorneys and law students who helped with research, and from fellow legal bloggers and lawyers who shared, retweeted and commented on our posts.  I would note that Howard Bashman of How Appealing has been particularly generous with sharing our write-ups and with his support.

Given all this, one might wonder why the Vetting Room is shuttering.  Especially with an incoming Administration that is likely to push to reshape the judiciary in a more conservative direction, and likely to be the source of dozens, if not hundreds, of posts.  Well, see, that’s the thing.

Writing and managing a legal blog is not cost-less. Several hours of research, wordsmithing, and analysis go into each post, not just in how to frame each nominee’s background, but also in determining what information should or should not be included. Time spent here is time not spent with my family, or pursuing other passions and interests. Having kept up with the blog through four years of a Republican President and four years of a Democratic President, now seems like the right time to move on.

The Vetting Room is not being taken down, and the posts that are here will stay on (at least for the near future).  As time dictates, additional posts detailing the history of the judiciary (some of my favorite writing but ones I’ve had trouble keeping up with) may be added.

This is not to say that it is time to disengage from judicial nominations entirely. Our founding fathers intended for the confirmation process to include public review and input. In the end, all Americans have an interest in having a Judiciary that decides based on the rule of law, rather than ideology or partisanship. And I expect that vigilance in the process will not cease.

Perhaps, if other interested attorneys come forward who would want to carry the mantle for an apolitical judiciary, the Vetting Room may revive as such. Until then, I thank all the readers this blog has maintained for their support and encouragement, and hope that, in our own way, we’ve had a positive impact on the judicial nomination discourse.

Last year, Democrats caught an unexpected break when they retained control of the U.S. Senate (and narrowly expanded their majority. This has allowed Democrats to confirm a number of stalled nominees from the previous Congress and continue an increase in the number of confirmations from the previous two years (all numbers are drawn from the Federal Judicial Center). While Democrats have had a number of successes on the judicial nominations front this year, work remains if they are to match President Trump’s numbers on the judiciary.

Nominations

In the first Congress of his presidency, Biden submitted 148 nominees to Article III courts to the Senate, of which 98 were confirmed.  In 2023, counting resubmissions from the previous Congress, Biden submitted 95 nominees to the Senate (and announced five more that are yet to be submitted). Biden particularly increased the number of district court nominees announced from states with Republican senators. In his first two years in office, President Biden nominated twelve district court nominees from states with Republican senators (four each from Ohio and Pennsylvania, and one each from Indiana, Iowa, Mississippi, and Wisconsin).  In comparison, this year, President Biden has announced nineteen district court nominees from states with Republican senators (four from Florida, three each from Louisiana and Texas, two each from Indiana and Oklahoma, and one each from Kansas, Nebraska, South Carolina, Utah, and Wyoming).

Confirmations

In 2021, the Senate confirmed 40 Article III judges: 11 judges to the U.S. Court of Appeals; and 29 judges to the U.S. District Court.  The Senate subsequently confirmed 57 in 2022: 1 to the Supreme Court; 17 to the Court of Appeals; and 39 to the District Courts.

In 2023, the Senate confirmed 69 Article III judges: 11 judges to the U.S. Court of Appeals; and 58 to the District Courts.  While this continues an upwards trajectory from the previous two years, it nonetheless leaves Biden short of the total number of confirmations that Trump achieved by this point in his Presidency.

Withdrawal

From the previous Congress to this one, a few judicial nominees did not make the cut for renomination. Eastern District of Wisconsin nominee William Pocan had been blue-slipped by GOP Senator Ron Johnson, despite Johnson having previously signed off on him.  With Johnson narrowly re-elected and Democrats not changing the district court blue slip policy so far, Pocan was not resubmitted.

Northern District of New York nominee Jorge Rodriguez was also not renominated but as the judge he was nominated to replace, Judge David Hurd, declined to take senior status, expressing opposition to Rodriguez not being a Utica-based practitioner.

Furthermore, Tenth Circuit nominee Jabari Wamble was also not renominated, instead being resubmitted for a district court seat in Kansas, before withdrawing his name from that seat as well on the heels of an unfavorable ABA review.

The most high-profile loss, for the White House, however, was that of First Circuit nominee Michael Delaney, who withdrew his nomination in the face of bipartisan opposition relating to his conduct in litigation involving an allegation of sexual assault. A replacement nominee, Seth Aframe, currently remains pending before the Senate.

Diversity

The Biden Administration has continued its focus on prioritizing women and racial/ethnic minorities for court seats, seeking to do so to offset the lack of diversity in the nominees of previous administrations.  They have also continued to pick nominees from backgrounds that are traditionally less likely to become judges, including public defenders, and civil rights attorneys.

However, the Administration, in drawing more nominees from states with Republican senators, has nominated more “traditional” nominees as well, with the eight new appellate nominees being submitted in 2023, including five men and three women, and three white men being nominated this year, the same number of white appellate nominees submitted in the entire previous Congress.

Overall Assessment

Despite a narrow 50-50 margin in the Senate last Congress, Democrats were able to largely keep pace with the Trump Administration’s confirmation numbers.  Nonetheless, the narrow margin meant that a large number of liberal nominees remained stuck waiting for final votes. The slightly-wider margin that Democrats have this year has allowed almost all the stalled nominees to be confirmed, despite opposition to a number of them from Sen. Joe Manchin.  As such, the Biden Administration has largely cleared the backlog of stalled nominees from 2022, with only a handful left to be confirmed. Additionally, after the previous Congress focused almost entirely on states without Republican senators, the White House has focused more aggressively on those states this year, naming nominees in a number of those seats. Overall, the White House has managed to keep pace with confirmations from previous years and is likely to exceed confirmation numbers achieved by previous Democratic presidents although it remains to be seen if he can match President Trump’s numbers.

Last November, Democrats defied political gravity and expanded their razor-thin majority in the U.S. Senate, enabling them to continue confirming judicial nominees for another two years. Six months into their Senate, it is worth taking a look at their progress and the landscape that remains.

In the last Congress, despite depending on the Vice President’s vote for their Senate majority, the Senate confirmed 97 Article III judges: one to the U.S. Supreme Court; 28 to the Courts of Appeal; and 68 to the U.S. District Courts. To maintain a similar pace, Democrats would need to have confirmed between 25-30 judges so far.

The good news is that, so far, Democrats are on pace to slightly exceed their pace, having confirmed 39 judges so far (7 appellate and 32 district) and on pace to confirm two more next week. The less positive news, however, is that the pace of nominations from the White House has dramatically slowed. After sending 55 nominations to the Senate in his first year and 70 in his second year, Biden has nominated just 30 judges so far this year. He has also had to deal with the first nomination losses of his Administration, with one appellate and two district judges being withdrawn, with a third potentially going the same route.

As a result of this slowdown in nominations, the majority of existing judicial vacancies lack nominees, and the Senate has only enough nominees to carry through its current confirmation pace to August. A summary of this landscape follows:

D.C. Circuit – 0 vacancies out of 11 judgeships

In two and a half years, Biden has managed to appoint four judges to the so-called “second highest court in the land”, starting with now-Supreme Court Justice Jackson, who was confirmed to the court in June 2021, a mere two months after her nomination. In 2022, Judge David Tatel was replaced by Judge Michelle Childs while Judge Florence Pan was confirmed to replace Jackson when she was elevated. This year, 37-year-old Brad Garcia was confirmed to fill the last remaining vacancy on the court, vacated lat year by Judge Judith Ann Wilson Rogers. The influential court has only one judge who is currently eligible for senior status, 78-year-old Karen Henderson, who has shown no sign of slowing down, making it unlikely that Biden would have any more appointees to the court this term.

The only district court that reports to the D.C. Circuit is the U.S. District Court for the District of Columbia. The 15-judgeship court has two sitting Biden appointees and two current vacancies, from Pan’s elevation, for which Judge Todd Edelman remains pending on the senate floor for confirmation, and from Judge Amy Berman Jackson’s move to senior status last month, for which D.C. Court of Appeals Judge Loren AliKhan is pending a final Judiciary Committee vote. The outgoing chief judge of the court, Judge Beryl Howell, is the sole appointee on the court who is eligible for senior status, leaving the possibility that Biden may get an additional appointment to the court.

First Circuit – 1 vacancy out of 6 judgeships (no nominee pending)

The smallest court of appeals in the country was also the sole geographically-based court not to see a single Trump appointment. Biden has already named Judge Gustavo Gelpi and Public Defender Lara Montecalvo to the court. This year, reproductive rights attorney Julie Rikelman was confirmed to replace Judge Sandra Lynch, moving the court significantly to the left. The final seat, based in New Hampshire, was vacated by Judge Jeffrey Howard last year, and lacks a nominee now that Michael Delaney withdrew last month in the face of bipartisan opposition. Unless the Biden Administration has been pre-vetting an alternate candidate, it is unlikely that a new nominee to replace Howard will hit the senate before August. Meanwhile, Judge William Kayatta, who is based out of Maine, remains a possible contender to take senior status as well, giving Biden a chance to name five out of the six judges on the court.

While this Senate has already confirmed district judges to seats in Massachusetts and Puerto Rico, the district courts covered by the First Circuit have two pending judicial vacancies, both in Massachusetts, and both have nominees pending a final vote on the floor.

An additional five district judges in the circuit remain eligible for senior status: Chief Judge F. Dennis Saylor and Judges Nathaniel Gorton, Patti Saris, and Richard Stearns in Massachusetts; and Judge Aida Delgado-Colon in Puerto Rico. Judge Jon Levy, who becomes eligible for senior status next year in Maine, has already announced his intention to take it. No public process has been announced to select a replacement.

Second Circuit – 0 vacancies out of 13 judgeships

After replacing five left-leaning judges on the Second Circuit in the last Congress, the Senate confirmed Justice Maria Araujo Kahn to replace 81-year-old conservative Jose Cabranes in March, transforming the court. With Chief Judge Debra Ann Livingston unlikely to take senior status before her term as chief ends, there is unlikely to be another appointment to the Second Circuit for several years.

Of the states covered by the Second Circuit, Connecticut, which saw three Biden appointees hit the bench last year, currently has two of the eight active district judgeships vacant and one pending nominee, Judge Vernon Oliver, who received a Judiciary Committee hearing last month. It is expected that a second nominee is incoming.

Meanwhile, the district courts in New York, after six confirmations this Congress, are down to four current and future vacancies. The Eastern District of New York has one vacancy out of sixteen judgeships, with a nominee pending on the floor. Additionally, one nominee, Margaret Garnett, was submitted this week to fill a vacancy on the Southern District of New York. The remaining two vacancies, one on the Southern District, and one on the Western District, lack nominees.

Third Circuit – 1 vacancies out of 14 judgeships (no nominee pending)

The Senate confirmed two Biden appointees to this court last Congress (Arianna Freeman nominated to replace Judge Theodore McKee and Justice Tamika Montgomery-Reeves to replace Judge Thomas Ambro). This year, the Senate confirmed Cindy Chung to replace Judge Brooks Smith. This leaves one vacancy, left by Judge Joseph Greenaway’s retirement, which lacks a nominee, but is expected to get one expeditiously. Additional vacancies this Congress are unlikely unless Judge Kent Jordan chooses to take senior status.

All three states covered by the Third Circuit have judicial vacancies. The biggest number are in Pennsylvania, which has three vacancies, two of which have nominees. Additionally, Judge Richard Andrews on the District of Delaware has indicated his desire to take senior status in December and Judge Jennifer Hall is being nominated to replace him.

The District of New Jersey, vacancy-ridden when the Biden Administration came to office, is now down to two seats left to fill, both of which are scheduled to open in the coming months. An additional seat may open if Biden chooses to elevate a district court judge to replace Greenaway (if he does so, Judges Georgette Castner and Zahid Quraishi are the most likely). The Senate previously confirmed two judges to the court this Congress and will likely process new nominees promptly.

Fourth Circuit – 1 vacancy out of 15 judgeships (no nominee pending)

After the confirmation of Judge DeAndrea Benjamin to the Fourth Circuit early this year, the big question mark in the Fourth Circuit is a Maryland vacancy first announced in December 2021 that still lacks a nominee. This has been reported to be the result of an impasse between the White House and Sen. Ben Cardin. With this Congress six months through, the clock is ticking for the two sides to reach a compromise, particularly as additional vacancies on the Fourth Circuit are possible with six other judges eligible for senior status (Chief Judge Roger Gregory, who ends his term as chief this year, is one judge to watch in particular).

One sign of optimism for the White House is that they were able to agree on two district court nominations in Maryland that are pending before the Senate, including Judge Brendan Hurson on the senate floor.

The Western District of North Carolina, meanwhile, has one current and one future vacancy, with no nominee on the horizon. An additional three North Carolina judges are eligible for senior status, leaving the possibility of additional vacancies opening.

The District of South Carolina currently has one vacancy, after Judge J. Michelle Childs was elevated to the D.C. Circuit. Late last year, it was suggested that U.S. Magistrate Judge Jacqueline Austin and attorney Beth Drake were under consideration to replace Childs, but no nominee has hit the senate yet. Additional vacancies are possible as Judge David Norton was rumored to be considering senior status in 2021, and Judge Richard Gergel is eligible as well.

The confirmations of two Virginia district judges earlier this year has left the state without any vacancies. With Judge Leonie Brinkema on the Eastern District of Virginia showing little appetite for slowing down, it is unlikely that the White House would get additional appointments in this state this term.

Meanwhile, West Virginia is the only state in the Fourth Circuit that has not yet seen a vacancy under Biden. Nonetheless, four of the state’s eight active judges are eligible for senior status, making it a reasonable chance that an additional vacancy may open this Congress.

Fifth Circuit – 1 vacancy out of 17 judgeships (one nominee pending)

Having appointed Judge Dana Douglas to the Fifth Circuit last year, Biden is poised to have a second appointment to the court in Judge Irma Ramirez. Six other judges on the Fifth Circuit are eligible for senior status, leaving a serious possibility that additional vacancies may open before the end of this Senate.

Louisiana’s Republican senators have managed to reach consensus with the Biden Administration on four nominations now, including two pending district court picks. It also appears that the senators had signed off on a third district court nominee to fill the last vacancy on the district court but the White House decided to drop the nominee from the package. Nonetheless, the good relationship that the parties have built should stand them well in filling the vacancy, as well as others that may open (six other Louisiana judges are eligible for senior status and a seventh will become eligible next year).

Mississippi, meanwhile, is in a holding pattern as the nomination of Scott Colom has stalled due to the late-breaking opposition of Sen. Cindy Hyde-Smith. With two other judges eligible for senior status, it is possible that a deal may grease Colom’s path to confirmation. Otherwise, only a change in blue slip policy would allow him to move forward.

No other state has more pending district court vacancies than Texas (eight to be precise) without any nominees pending. However, Texas senators have been collecting applications for the vacancies and the successful collaboration over Ramirez’s nomination suggests that deals can still be made. With twelve additional judges eligible for senior status, more vacancies may be on the horizon.

Sixth Circuit – 1 vacancies out of 16 judgeships (one nominee pending)

Of the three vacancies on the Sixth Circuit that opened in the Biden Administration, only the Ohio based seat of Judge R. Guy Cole remains open. Rachel Bloomekatz, nominated to replace Cole, is awaiting a final vote on the senate floor, which should come before the August recess. Of the remaining judges on the court, five are eligible for senior status: Judges Karen Nelson Moore, Eric Clay, Julia Smith Gibbons, Richard Allen Griffin, and Jane Branstetter Stranch. As such, it would not be surprising to see an additional vacancy open before the end of this Congress.

On the district court level, two of the four states under the Sixth Circuit have vacancies pending. After the White House’s proposal to nominate conservative lawyer Chad Meredith to the Eastern District of Kentucky fell through, Judge Karen Caldwell withdrew her intention to take senior status. As Caldwell and Judge Danny Reeves are the only judges on the Kentucky federal bench who are eligible for senior status, it is unlikely that Biden would be able to name any judges to the state.

With the confirmation of Judge Jonathan Grey to the Eastern District of Michigan this year, the court has three pending vacancies with two nominees pending before the Senate Judiciary Committee. With five other Michigan district judges eligible for senior status, there is a strong possibility that additional vacancies may open this Congress.

After the confirmation of four judges last year, there are no vacancies on the district courts of Ohio. However, five judges remain eligible for senior status, and it is conceivable that additional vacancies may open, particularly as Chief Judge Algernon Marbley ages out of his position next year.

Finally, a vacancy is pending on the Western District of Tennessee. The White House and Tennessee Senators battled over the Sixth Circuit nomination of Andre Mathis, and no nominee has been put forward to replace Judge John Fowlkes, who took senior status last year. If additional vacancies open (three judges are eligible for senior status), it is possible that the White House may be able to strike a package deal with Tennessee senators to fill the vacancies.

Seventh Circuit – 1 vacancy out of 11 judgeships (no nominees pending)

Having named Judge Candace Jackson-Akiwumi, Judge John Lee, and Judge Doris Pryor to the Seventh Circuit last Congress, a fourth vacancy, opened by Judge Michael Kanne’s death, still lacks a nominee. Indiana’s Republican Senators worked with the White House to support Pryor, Judge Matthew Brookman for a district court seat, and two U.S. Attorney nominees. As such, it is expected that the White House will put forward a compromise candidate for the Seventh Circuit, likely paired with candidates to fill two vacancies on the Northern District of Indiana. If an additional seat opens, it will likely be that of Judge Ilana Rovner, who is in her mid-eighties and has been on the bench since the 1970s.

On the district court level, two vacancies are pending on the U.S. District Court for the Northern District of Illinois, with one nominee pending a final vote on the senate floor. The last vacancy will likely get a nominee in the coming weeks.

Meanwhile, in Wisconsin, Judge William Pocan‘s nomination was withdrawn due to the opposition of Sen. Ron Johnson, and Wisconsin’s senators recommended two alternate candidates for the seat: state judge Marc Hammer and personal injury attorney Byron Conway three weeks ago. As such, a nominee is unlikely to come before September. However, with three other Wisconsin district judges eligible for senior status, another vacancy may well open before the end of the Congress.

Eighth Circuit – 0 vacancies out of 11 judgeships

The Eighth Circuit remains the sole court of appeals not to see a vacancy open under Biden, even as three judges are currently eligible for senior status and a fourth becomes eligible next year. Each of the four, however, are fairly conservative, and may choose to hold off on senior status until a Republican Administration.

Out of the eight active judgeships among Arkansas’ two districts, only one remains vacant, left open by Judge P.K. Holmes’ move to senior status in 2021. However, despite two and a half years since Judge Holmes announced his move to senior status, no nominee has been announced. Given that the White House has been unable to agree with senators even on U.S. Attorney nominees in Arkansas, the prospects of a nominee seem remote, despite talks ongoing.

With the confirmation of Judge Stephen Locher to the Southern District of Iowa last year, the state is unlikely to see further vacancies this Congress, given the youth of all of its judges.

Having named two judges to the Minnesota district court last Congress, Biden has opportunity to replace Judge John Tunheim this year, and is expected to nominate Minnesota Court of Appeals Judge Jeffrey Bryan next month.

With three vacancies, Missouri is likely the sight of much Democratic frustration, as the state’s Republican senators have shown little willingness to agree to confirm replacements. As such, barring a change in blue slip policy, it is unlikely that Missouri will get any new judges soon.

The District of Nebraska has had a vacancy pending from Judge John Gerrard’s move to senior status. Senator Deborah Fischer opened the application process to replace Gerrard with a deadline in December 2022, suggesting that recommendations have likely already been made to the White House. If the Administration and senators can get on the same page, a nomination can likely be made and confirmed this year.

The District of North Dakota has two Trump appointees and no vacancies, while its neighbor to the south has two vacancies that need filling. Recent press suggests that the state’s Republican senators are not standing in the way of new appointments and that conversations are ongoing, suggesting optimism that nominations can be confirmed by the end of the year.

Ninth Circuit – 1 vacancy out of 29 judgeships (one nominee pending)

Compared to other courts of appeals, the White House has had comparative success in confirming judges to the Ninth Circuit, naming seven, with an eighth, Judge Ana de Alba, pending a final Senate vote. Of the judges who remain, six judges remain eligible for senior status, raising a fair possibility that an additional appointment may come Biden’s way.

Of the district courts covered by the Ninth Circuit, Biden has already named 29 judges, with seven additional nominees pending. One state that is still awaiting a nominee, however, is Alaska, which has still not seen a nominee to replace Judge Timothy Burgess who took senior status in December 2021. With Judge Sharon Gleason becoming eligible for senior status next year, a nomination grows increasingly important.

Similarly, Arizona has not seen any Biden district court appointees, although that is because no seat has opened during the Administration. However, in 2024, judges Douglas Rayes and James Soto become eligible for senior status, raising the possibility that Biden may be able to name some judges in Arizona.

California is the site of Biden’s greatest success on judicial nominations, with Biden having named 19 district judges, more than any other president in one term. An additional four nominees are pending confirmation of the senate floor and expected to be confirmed in the next few weeks. Furthermore, three other vacancies still lack nominees, and additional twelve judges are eligible for senior status. As such it would not be surprising to see Biden named thirty judges to the California district courts by the end of this term.

The District of Hawaii is expected to have some new judges with Judges J. Michael Seabright and Leslie Kobayashi taking senior status next year. Hawaii Senators Mazie Hirono and Brian Schatz have set up an evaluation committee to review applications with a deadline in March 2023, making it likely that new nominees should hit the senate in the coming months.

This Senate confirmed Judge Amanda Brailsford unanimously to a seat on the District of Idaho, adding gender diversity to one of a handful of all-male courts left in the nation.

Judge Dana Christensen in Montana has announced his intention to take senior status upon confirmation of a successor, and Montana’s senators have set up an application process to replace him with an application deadline on June 14 of this year. If the senators can reach an agreement on a nominee, confirmation can be expected promptly.

Having confirmed two judges to the District of Nevada last year, no additional vacancies are expected this Congress, with the bench largely composed of fairly young Obama and Biden nominees.

After the confirmation of Justice Adrienne Nelson to the District of Oregon earlier this year, the state is primed for two more Biden nominees, to replace Judges Ann Aiken and Marco Hernandez. Moving quickly, Oregon senators have already recommended six candidates rates to replace Hernandez. While Aiken does not base her chambers out of Portland, it is possible that one of the recommended candidates may be chosen to replace her.

The Eastern and Western Districts of Washington have seen a major transformation under Biden, with him filling six out of eleven judgeships already. An additional two nominees are expected to be confirmed in July, with the nomination of Charnelle Bjelkengren to the last remaining vacancy likely being a closer call.

Tenth Circuit – 1 vacancy out of 12 judgeships (no nominee pending)

The Kansas seat vacated by Judge Mary Briscoe is the oldest appellate vacancy in the country, and the site of failure by the White House when their first nominee, Jabari Wamble, crashed and burned due to the expectation of a bad ABA rating. Since then, there is little peep regarding a new Tenth Circuit nominee. Meanwhile, three other judges are also eligible for senior status, leaving the possibility that an additional appointment to the court may come Biden’s way.

The Colorado federal bench has seen significant turnover under Biden, with four out of the state’s seven judgeships filled with Biden appointees. Biden has a good chance to secure a fifth appointment upon the confirmation of Judge Kato Crews to fill the lone vacancy on the district court. Meanwhile, Judge Philip Brimmer becomes eligible for senior status next year, raising the possibility of a sixth appointment.

The District of Kansas has one pending vacancy, opened last year by Judge Julie Robinson’s move to senior status. The White House previously nominated Jabari Wamble to this seat, but Wamble withdrew in the face of an unfavorable ABA review, leaving the White House back at square one. If this seat gets filled now, it will likely be in conjunction with the Tenth Circuit vacancy.

Having confirmed three judges to the District of New Mexico, the court now has no pending vacancies, and is unlikely to have additional ones this Congress.

There are currently two vacancies on the Oklahoma district courts, and while Senators James Lankford indicated that he and the White House were having productive conversations back in 2021, there has been no nominee submitted and no updates since Sen. Markwayne Mullin replaced Sen. James Inhofe.

The District of Utah has a single vacancy, from Judge David Nuffer’s move to senior status last year. There has been little movement on a nominee publicly.

The District of Wyoming has a pending vacancy from Judge Nancy Freudenthal’s move to senior status last year. However, there appears to be little movement on a replacement and it is unclear what the status of negotiations is at.

Eleventh Circuit – 0 vacancies out of 12 judgeships

The Biden Administration achieved a significant victory last month when civil rights attorney Nancy Abudu was confirmed to the Eleventh Circuit. However, unless Judge Charles Wilson chooses to take senior status, the Administration is unlikely to secure a second appointment on the circuit.

On the district court level, Alabama has two pending vacancies, one from the elevation of Judge Andrew Brasher in the Trump Administration, and the second from Judge Abdul Kallon’s untimely resignation. Both lack nominees and it remains to be seen if a package can be reached (it’s possible that Alabama senators may demand the renomination of Trump nominee Edmund LaCour).

Florida currently has eight current and future district court vacancies, all of whom lack a nominee. Both Senator Marco Rubio and Florida’s Democratic House delegation recommended attorney Detra Shaw-Wilder (a Democrat) to the Southern District of Florida last year, but she was never nominated. However, in a breakthrough, the White House and senators were reported to have struck a deal to elevate two magistrate judges: Jacqueline Becerra and Melissa Damian; and nominate Rubio choice David Leibowitz to the Southern District. Assuming the deal holds up, nominees should hit the Senate this summer.

Meanwhile, Georgia has no current or pending judicial vacancies, although Judge Mark Treadwell on the Middle District is eligible for senior status and may take it soon.

Federal Circuit – 0 vacancies out of 12 judgeships

Biden has already named two judges to the specialized Federal Circuit, and the court has no current vacancies. However, two factors make this court one to keep an eye on. First, Judge Pauline Newman, at 96, the oldest active judge in the country, is in the middle of a disciplinary action concerning her continued fitness to remain in active status. Other judges on the court are pushing Newman to retire or take senior status, which would open a seat for Biden to fill. Second, even setting Newman aside, four other judges on the court are currently eligible for senior status, including judges Alan Lourie and Timothy Dyk, who are in their mid to late 80s. As such, the odds are in favor of an additional vacancy opening on the Federal Circuit this Congress.

Additionally, after more than two years of waiting, the White House finally named candidates to fill two vacancies on the Court of International Trade, the only Article III court that is required to have partisan balance. The candidates, a pair of a Democratic and Republican pick, should have relatively comfortable confirmations.

Conclusion

At this point, Democrats have many successes to tout in their first six months with a real majority, and have slightly exceeded their confirmation pace from the previous Congress. However, with a Presidential election looming, both the nomination and confirmation pace likely needs to accelerate further to give the Biden Administration a chance to catch up to, if not exceed, the accomplishments of the previous Trump Administration.

While the Georgia runoff still awaits, as of the writing of this article, Democrats have defied political history and maintained their razor-thin Senate majority past the midterm elections. With the loss of the House, Democrats are unlikely to pass transformative legislation in the next two years, freeing the Senate to prioritize nominations (where the House has no role). Court watchers will likely welcome this, as, despite historic successes with their razor-thin majority, the Biden Administration has little time to rest if it intends to fill a sizeable proportion of the 100+ lower court vacancies currently pending in the federal judiciary. Currently, there are sixteen circuit court vacancies and ninety-seven district court vacancies pending (including seats announced to be vacated but currently still full). In comparison, 56 judicial nominees are currently before the senate, twelve to circuit courts and 44 to district courts. As the Biden Administration and Senate Democrats turn to nominations and confirmations, it’s useful to look again at the current landscape.

As a reminder, the process for choosing circuit and district court nominees is fairly different. After the practice of requiring blue slips for appellate nominees was terminated during the Trump Administration, the Administration is under no obligation to secure pre-approval from home state senators before the nominee can receive a hearing. However, in practice, the Administration is still incentivized to consult with home state senators, which can slow down the nomination process, particularly in states with Republican senators.

Unlike circuit court vacancies, district court seats still require home state approval in order to be confirmed. This means that the ball is largely in the senators’ court in terms of naming nominees. This doesn’t mean that the Administration is completely absent from the process. It is still responsible for prodding senators, negotiating agreements, and choosing the right candidate. In fact, the Administration started right off the gate with an announcement that it expected recommendations for vacancies within 90 days of the announcement. This makes it all the more surprising the sheer number of district court seats that sit without nominees today.

This split is less surprising in states that only have Republican Senators, a group which includes thirty-five district court vacancies without nominees: six in Florida; five in Texas; three in Indiana and Louisiana; two each in Alabama, Missouri and Oklahoma; and one each in Alaska, Arkansas, Idaho, Kansas, Kentucky, Nebraska, North Carolina, South Carolina, South Dakota, Tennessee, Utah, and Wyoming. Many of the home state senators in these states have been fairly open about their unwillingness to work with the Administration on a nominee. However, others have been more willing to be involved, with Iowa senators, for example, recommending U.S. Magistrate Judge Stephen Locher, a young Democrat, to the bench (Locher was swiftly and unanimously confirmed). The lone district court nominee in a 2-Republican state is also the most recent, Scott Colom in Mississippi.

Similarly, in states with split delegations, the White House understandably needs to move with the support of home state Republican senators. It has had mixed luck in the states it has tried this with. Ohio Sen. Rob Portman returned blue slips for three nominees who were confirmed (one more remains pending). Similarly, the White House was able to reach a four nominee deal with Sen. Pat Toomey in Pennsylvania that included a nominee of his choice. In contrast, Sen. Ron Johnson has chosen to block a nominee that he previously signed off on.

Perhaps the most surprising in terms of vacancies without nominees are blue states or territories, where Democratic senators would presumably be incentivized to send recommendations quickly: yet, sixteen district court vacancies from blue states are nomineeless today, including four from California, three from New Jersey, two each from Connecticut, Illinois, and Michigan, and one each from Colorado, Maryland, and New York. A summary of this landscape follows:

D.C. Circuit – 1 vacancy out of 11 judgeships (one nominee pending)

The so-called “second highest court in the land”, the D.C. Circuit was the site of Biden’s first appointee when Jackson was confirmed to the court last June, a mere two months after her nomination. However, since that haste, a second vacancy languished for more than a year, taking nearly nine months after Judge David Tatel announced his departure from active status before Judge Michelle Childs was nominated, and taking Childs eight months to be confirmed. Jackson’s elevation to the Supreme Court reopened another vacancy, and the White House moved more quickly, elevating U.S. District Judge Florence Pan (confirmed in September). A fourth nominee, Brad Garcia remains pending on the Senate floor to fill the last remaining vacancy on the court, vacated by Judge Judith Ann Wilson Rogers.

The only district court that reports to the D.C. Circuit is the U.S. District Court for the District of Columbia. The 15-judgeship court has one current vacancy, from Pan’s elevation, and one future vacancy, with Judge Colleen Kollar-Kotelly taking senior status upon confirmation of a successor. Nominees are pending for both vacancies with Ana Reyes currently awaiting a floor vote and Judge Todd Edelman having received a Judiciary Committee hearing last week.

First Circuit – 2 vacancies out of 6 judgeships (one nominee pending)

The smallest court of appeals in the country was also the sole geographically-based court not to see a single Trump appointment. Biden has already named Judge Gustavo Gelpi and Public Defender Lara Montecalvo to the court. Additionally, reproductive rights attorney Julie Rikelman is pending a vote before the Senate Judiciary Committee to replace Judge Sandra Lynch. The final seat, based in New Hampshire, was vacated by Judge Jeffrey Howard nearly nine months ago, and lacks a nominee. Given that New Hampshire has two Democratic senators, the lack of a nominee is puzzling.

The district courts covered by the First Circuit have five pending judicial vacancies, all of which have nominees. The District of Massachusetts has three current vacancies and three nominees pending, two of whom already have hearings.

The District Court for the District of Puerto Rico is down two judges, with nominees to fill the seats already on the Senate floor. A final Senate vote on Judge Camille Velez-Rive is expected next week, which should leave Judge Gina Mendez-Miro as the sole pending P.R. nominee.

Second Circuit – 1 vacancy out of 13 judgeships (one nominee pending)

Having replaced five left-leaning judges on the Second Circuit, the Biden Administration has already had a significant impact on the court. However, Justice Maria Araujo Kahn, nominated to replace 81-year-old conservative Jose Cabranes, remains pending in the Senate Judiciary Committee and has a long line of nominees ahead of her to be confirmed.

Connecticut, which saw three Biden appointees hit the bench last year, is one of the worse blue states when it comes to nomineeless vacancies, with two of the eight active judgeships vacant and no nominees on the horizon.

Meanwhile, the district courts in New York are also shortstaffed, with nine vacancies among them. The hardest hit is the Eastern District of New York, which has four vacancies out of sixteen judgeships, The bright side for the White House is that eight of the nine vacancies have nominees pending. The down side is that only three of the nominees are currently on the Senate floor (with one, Anne Nardacci, expected to be confirmed next week). Two of the longer pending nominees, Southern District of New York picks Dale Ho and Jessica Clarke, are currently bottled up in Committee, pending a discharge vote. Three more await hearings.

Third Circuit – 2 vacancies out of 14 judgeships (two nominees pending)

This moderate court currently has one Biden nominee confirmed (Arianna Freeman nominated to replace Judge Theodore McKee) but Judges Thomas Ambro and Brooks Smith don’t have replacements yet although nominees are pending on the Senate floor for both seats and should, if prioritized, be confirmed easily.

Two of the three states covered by the Third Circuit have judicial vacancies. The biggest number are in Pennsylvania, which has seven vacancies, four of which have nominees, the aforementioned four nominee deal. With Democrat John Fetterman replacing Toomey, it is likely that new recommendations will be sent out for the remaining vacancies and they will likely not be confirmed in the next few months.

The District of New Jersey, vacancy-ridden when the Biden Administration came to office, is now down to three seats left to fill. However, none of the three vacancies have nominees pending even though the oldest dates back seven months. With control of the Senate solidified, it is likely that New Jersey will see new district court nominees shortly.

Fourth Circuit – 2 vacancies out of 15 judgeships (one nominee pending)

The Fourth Circuit currently has vacancies out of South Carolina and Maryland. Judge DeAndrea Benjamin, nominated to the South Carolina seat, has home state senator support and will likely be confirmed easily in the new Congress. However, the bigger surprise is that a Maryland vacancy announced last December still lacks a nominee. Maryland’s Democratic senators have a mixed record in the speed of recommendations and a district court vacancy in the state announced last year also lacks a nominee.

In other states, Virginia has two nominees pending before the Senate Judiciary Committee for a final vote. Their confirmations would fill all the remaining vacancies on the state’s district courts.

Additional vacancies exist in North Carolina and South Carolina. Both North Carolina and South Carolina have two Republican senators, so any nominee will largely depend on the White House’s negotiations.

Fifth Circuit – 2 vacancies out of 17 judgeships (one nominees pending)

The ultra-conservative Fifth Circuit became even more so when the youngest Democrat on the Fifth Circuit, Judge Gregg Costa, unexpectedly announced his resignation from the bench. Nine months after Costa’s announcement, there is still no nominee pending to replace him, although Judge Dana Douglas, nominated to replace Octogenarian liberal James Dennis, is poised for confirmation after bipartisan support in the Judiciary Committee.

On the district court level, both Louisiana and Texas have multiple district court vacancies and no hint of any nominee. Mississippi, on the other hand, despite having only one vacancy, does have a nominee: Scott Colom. While Mississippi senators have not yet announced support for Colom, they have not expressed opposition either, suggesting that Colom might be, surprisingly, on track for confirmation.

Sixth Circuit – 1 vacancies out of 16 judgeships (one nominee pending)

Of the three vacancies on the Sixth Circuit that opened in the Biden Administration, only the Ohio based seat of Judge R. Guy Cole remains open. Rachel Bloomekatz, nominated to replace Cole, is awaiting a discharge vote in the Judiciary Committee. It remains to be seen if Sen. Sherrod Brown will push for Bloomekatz to receive a final Senate vote by the end of the year.

On the district court level, each of the four states under the Sixth Circuit have vacancies pending. After the White House’s proposal to nominate conservative lawyer Chad Meredith to the Eastern District of Kentucky fell through, there remains no nominee to replace Judge Karen Caldwell, although Caldwell has reaffirmed that she will only leave the bench if a conservative is appointed to replace her.

The Eastern District of Michigan has four pending vacancies and two nominees (one on the Senate floor). Michigan’s Democratic senators have been relatively slow in naming nominees, so it’s unclear when nominees will hit the Senate for the remaining vacancies.

The Southern District of Ohio has a single vacancy, with a nominee, Jeffery Hopkins, pending a Judiciary Committee vote. With Sen. Rob Portman set to be replaced by J.D. Vance, it is possible that Democrats will prioritize Hopkins in an effort to fill the seat before Vance’s input is needed.

Finally, a vacancy is pending on the Western District of Tennessee. The White House and Tennessee Senators battled over the Sixth Circuit nomination of Andre Mathis, and while the White House ultimately won confirmation, other seats could become casualties. Nonetheless, the White House has put forward U.S. Attorney nominees with senatorial support in the state, suggesting that some common ground can be reached to fill the vacancy.

Seventh Circuit – 2 vacancies out of 11 judgeships (one nominee pending)

In addition to naming Judge Candace Jackson-Akiwumi and Judge John Lee to the Seventh Circuit, Biden has the chance to add two more judges to the court. Judge Doris Pryor, currently pending on the senate floor, is likely to be confirmed before the end of the year. However, the second vacancy, opened by Judge Michael Kanne’s death, lacks a nominee. Given the support Indiana’s Republican Senators gave to Pryor, the White House is likely to grant them deference in turn in cchoosing a nominee to replace Kanne.

On the district court level, Illinois nominees Lindsay Jenkins and Colleen Lawless are pending in the Senate Judiciary Committee. The Northern District of Illinois has two more vacancies that are likely to get nominees shortly.

Meanwhile, three vacancies are pending in Indiana without nominees. It is likely that the White House may lump these nominees into a package with the Kanne seat to allow for all the seats to be filled at once.

Wisconsin is likely a sign of frustration for the White House as Senator Ron Johnson has now blocked both a federal judge nominee and a U.S. Attorney nominee that he previously signed off on. With Johnson’s narrow re-election, it is likely that the nomination of Judge William Pocan is dead, and the White House and senators will have to renegotiate a new nominee to replace Judge William Griesbach.

Eighth Circuit – 0 vacancies out of 11 judgeships

While the Eighth Circuit remains the sole court of appeals not to see a vacancy open under Biden, there are a number of vacancies open in the district courts covered under the Circuit, including one each in Arkansas, Minnesota, Nebraska, and South Dakota, and two pending in Missouri. Of these, only the seat in Minnesota has a nominee (Jerry Blackwell, who is awaiting a floor vote). Of the remaining vacancies, the White House has failed to nominate any U.S. Attorneys in those states, boding poorly for the likelihood of any agreement on judicial nominees.

Ninth Circuit – 1 vacancies out of 29 judgeships (one nominee pending)

Compared to other courts of appeals, the White House has had comparative success in confirming judges to the Ninth Circuit, naming six, with a seventh pending a judiciary committee vote. The district courts covered by the Ninth Circuit were equally successful for the White House, which has already confirmed 19 judges to (compared 14 judges that the Trump Administration named over four years).

An additional 13 nominees are currently pending to fill 19 vacancies, eight in California, four in Washington, and one in Oregon. Of the seats needing nominees, four are in California (two on the Central District and two on the Southern District). Another two are in Alaska and Idaho respectively, which have two Republican senators apiece.

Tenth Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

The Kansas seat vacated by Judge Mary Briscoe is the oldest appellate vacancy in the country. Judge Briscoe announced her move to senior status in January 2021, and a nominee, Jabari Wamble, was announced in August 2022. Wamble has yet to have a Committee hearing but could, in theory, be confirmed early next year.

Among the states covered by the Tenth Circuit, there are eight district court vacancies, out of which two have nominees. Five of the six nomineeless vacancies are in states with two Republican senators, with particularly long-pending vacancies in Kansas, Oklahoma, and Utah, in particular. Given the nomination of Wamble in Kansas and the successful confirmation of Trina Higgins to be U.S. Attorney in Utah, it is possible that the White House is able to reach an agreement with senators to fill the vacancies shortly.

Eleventh Circuit – 1 vacancy out of 12 judgeships (one nominee pending)

Judge Beverly Martin announced her retirement from the Eleventh Circuit in July, ultimately leaving the court in late September. The Biden Administration nominated civil rights attorney Nancy Abudu to the court in December, but then unwittingly delayed Abudu’s hearing by quixotically claiming that she was under Supreme Court consideration. While no serious observer believed that Abudu would be nominated to the Supreme Court, her consideration ensured that Abudu’s nomination would not be processed until a nominee was named. Furthermore, Abudu’s nomination proved deeply controversial and deadlocked in Committee, forcing a discharge vote that has yet to occur. Given the risk to Abudu’s nomination if Warnock were to lose, it is likely that Democrats would seek to prioritize her nomination if the runoff went poorly.

On the district court level, Alabama has two pending vacancies, one from the elevation of Judge Andrew Brasher in the Trump Administration, and the second from Judge Abdul Kallon’s untimely resignation. Both lack nominees as outgoing Republican senator Richard Shelby expressed his opposition to any left-of-center nominee. With Shelby’s retirement and the election of Katie Britt to the Senate, it remains to be seen if a package can be reached (it’s possible that Alabama senators may demand the renomination of Trump nominee Edmund LaCour.

Meanwhile, Florida has more nominee-less vacancies than any other state: six. Both Senator Marco Rubio and Florida’s Democratic House delegation recommended attorney Detra Shaw-Wilder (a Democrat) to the Southern District of Florida last year, but no nominee has hit the Senate yet. The recent announcements of U.S. Attorney nominees to two of the three open positions in Florida, however, could presage a thaw in negotiations over the state’s appointments.

Conclusion

On one side, one could argue that the Senate has plenty of time to fill these vacancies, as well as more that will inevitably open over the next two years. After all, despite a packed legislative calendar, the Senate has already confirmed eighty-five nominees (and will likely confirm more before the end of the Congress). However, it’s also important to recognize the fragility of the Democrat’s narrow majority. Just because 50 members held together over the last two years is no guarantee that it will last another two. In a sense, winning the Georgia runoff and securing a 51st seat will be all the more important for Democrats if they seek to rival Trump’s judicial legacy.

In the coming month, two Obama appointed judges are resigning from the bench. Judge Gregg Costa, who serves on the Fifth Circuit and Judge Abdul Kallon, who serves on the U.S. District Court for the Northern District of Alabama, are both resigning on August 31, 2022. This, in and of itself, is not particularly remarkable, until one considers that both judges, giving up lifetime appointments, are barely knocking on the doors of their 50s. It is unusual for a judge to leave the bench before reaching eligibility for retirement, but for two to leave in the same month when they have decades of tenure ahead of them does raise a question. Both Costa and Kallon were appointed to the bench at age 40. Do judges appointed at younger ages, despite the hope for their longevity, tend to leave the bench early?

The Rule of 80

Federal judges become eligible for retirement (or for reducing their caseload under senior status) under the Rule of 80. That means that, when the length of a judge’s active tenure on the federal bench added to their age meets or exceeds 80, they are eligible to retire at full pay. As such, a judge appointed to the bench at age 52 would have to serve fourteen years in active status before becoming eligible for senior status. In comparison, a judge appointed at age 56 would serve only twelve years in active status before becoming eligible. The exception to the rule of 80 is if the judge was appointed to the bench before age 50, in which case the judge becomes eligible on their 65th birthday regardless of the length of their tenure. Because of this exception, in theory, judges appointed in their 30s and 40s have a lengthy tenure as an active judge before hitting eligibility for senior status or retirement.

Judges Who Resigned Before Hitting the Rule of 80

Looking back fifty years, the last ten presidents have appointed a total of eighty judges who resigned from the bench before hitting eligibility for senior status/retirement. Breaking it down, eighteen of President Nixon’s appointees to the federal bench resigned early. In comparison, President Ford’s number is three, President Carter appointed eleven, President Reagan appointed nine, President George H.W. Bush appointed eleven, President Clinton appointed thirteen, President George W. Bush appointed eleven, and President Obama has appointed four early resignations (including Costa and Kallon). So far, none of President Trump’s or President Biden’s appointees have resigned early.

Looking at the eighty resignees, they were generally appointed to the bench at comparatively younger ages. While the average judicial nominee over the last fifty years has been appointed to the bench between 50 to 52 years of age, only thirteen of the eighty resignees were appointed to the bench at age fifty or above. In comparison, eighteen of the resignees were appointed between the ages of forty-five and forty-nine, thirty-one were appointed between forty and forty-four, and eighteen were under the age of forty when they were appointed to the bench. As such, a significant majority of judges who resigned over the last fifty years were under the age of forty-five when appointed to the bench.

This is even more notable when one considered how few nominees, comparatively speaking, were traditionally appointed to the bench at such young ages. Consider the following:

• Nixon appointed forty-six judges under the age of forty five. Twelve of them or 26% resigned early. In comparison, only 3.2% of judges appointed at forty five or older resigned early.
• Ford appointed eleven judges under the age of forty five. Three of them or 27.3% resigned early. In comparison, none of his judges appointed at forty five or older resigned early.
• Carter appointed fifty judges under the age of forty five. Seven of them or 14% resigned early. In comparison, only 1.9% of judges appointed at forty five or older resigned early.
• Reagan appointed one hundred and eleven judges under the age of forty five. Five of them or 3.6% resigned early. In comparison, 1.8% of judges appointed at forty five or older resigned early.
• George H.W. Bush appointed sixty-eight judges under the age of forty five. Eight of them or 11.8% resigned early. In comparison, only 2.3% of judges appointed at forty five or older resigned early.
• Clinton appointed sixty-two judges under the age of forty five. Seven of them or 11.3% resigned early. In comparison, only 1.9% of judges appointed at forty five or older resigned early.
• George W. Bush appointed forty-nine judges under the age of forty five. Five of them or 10.2% resigned early. In comparison, 2.1% of judges appointed at forty five or older resigned early.
• Obama appointed forty-six judges under the age of forty five. Two of them or 4.3% resigned early. In comparison, 0.7% of judges appointed at forty five or older resigned early.

All in all, 11% of judges appointed by these Presidents who were under the age of 45 at the time of appointment ended up resigning early, a disproportionately high number.

Nor can this discrepancy be explained by younger judges merely having a larger window to resign early. Of the judges appointed under the age of forty, for example, they left the bench at an average age of forty-seven, with most of them serving less than a decade on the bench.

Why Do Younger Appointees Leave Early?

So, what can explain why judges appointed to the bench early are more likely to leave the bench early? Looking at the judges who resigned early, there are three main motivations for these resignations.

The first and largest category of resignations involve judges who returned to private practice. Many of these judges cited the comparatively low pay for judges in motivating their decision to retire. Central District of California Judge Stephen Larson, for example, resigned his lifetime appointment three years in, noting that a federal judge’s salary is insufficient to support his family of seven children. Larson was only forty-five when he left the bench. About twenty years before Larson left the bench, fellow California Judge Raul Ramirez also resigned the bench at forty-five, again citing the comparatively low pay that comes with being a federal judge. Other judges, like Costa, cited a desire to return to the role of an advocate. No matter what the justification, however, there is no denying that a federal judge can easily quintuple their salary (or more) by moving to private practice. For a judge who is looking at a decade or more until their caseload eases with senior status, the desire for a more lucrative career may be a strong motivator.

The second category of judges are those who accepted other appointments or careers (please note that judges elevated to the courts of appeals or supreme court are not considered resignations). This includes judges who accepted appointments on state courts, including Eastern District of Michigan Judge Patricia Boyle, who was appointed to the Michigan Supreme Court. Boyle’s son noted that she felt she could do more for the people of Michigan as a state judge. Other judges took executive appointments, including Judge Louis Freeh, who resigned a seat on the Southern District of New York at forty-three to become Director of the Federal Bureau of Investigation, and Judge Mark Filip, appointed to the Northern District of Illinois at thirty-seven, who left four years later to serve as U.S. Deputy Attorney General.

The final category of resignations include judges who resigned due to scandals or ethical issues. This group includes judges who served on the bench for a comparatively longer period of time. Colorado Judge Edward Nottingham, for example, served nearly two decades on the bench before resigning amidst multiple misconduct scandals. Despite the length of his tenure, Nottingham was still five years away from senior status eligibility when he retired. Similarly, Middle District of Alabama Judge Mark Fuller resigned his lifetime appointment after twelve years on the bench after an arrest for misdemeanor battery against his wife.

Explanations

So what does all this tell us about why younger judges tend to leave the bench early. The answer might be remarkably simple. For judges appointed after 20+ years of legal experience, a lifetime appointment can be seen as a capstone on their career. However, younger judges may see it as a tool for career advancement, and, as such, might be more willing to step away if they find another position that is sufficiently attractive.

Of course, none of this suggests that appointing younger judges is completely counterproductive. The vast majority of federal judges, appointed young or otherwise, stay on the bench until retirement eligibility. Furthermore, younger appointees are more likely to be elevated to appellate positions. Every justice currently serving on the Supreme Court, for example, was originally nominated for the federal bench at age forty-five or younger (although Roberts and Kagan were not confirmed on their original nominations). However, the likelihood of younger judges to resign their appointments early could mitigate the utility of appointing younger candidates. As such, future Presidents may consider whether their 40-year-old nominee would will leave the bench a decade down the road.

Barring the unexpected, Judge Ketanji Brown Jackson will be confirmed to the Supreme Court this week, capping a ten week nomination and confirmation process since Justice Stephen Breyer’s retirement announcement in late January. While the Administration would likely take a (deserved) victory lap over Jackson’s confirmation, the most crucial period for securing Biden’s judicial legacy begins after.

While the Biden Administration came into office with comparatively few judicial vacancies to fill, a rash of Democratic appointees moving to senior status has created an opportunity for the Administration to leave a substantial imprint on the lower courts. Jackson’s confirmation will leave 24 lower court nominees left before the Senate, while pales in comparison to the 108 pending judicial vacancies listed on the U.S. Courts website. The situation is even more significant, given that many confirmed vacancies, including those by Third Circuit Judge Thomas Ambro, Ninth Circuit Judges Andew Hurwitz, Margaret McKeown, and Sidney Runyan Thomas, and D.D.C. Judge Colleen Kollar-Kotelly, are not public on the site yet. As such, the administration has around 90 vacancies on the federal bench with no nominees pending. Given that, fourteen months into his Presidency, Biden has yet to send 90 judicial nominees to the Senate, the Administration will have to move fast to have any hope of filling a substantial number of these vacancies.

Consider that the Administration has failed to name a single lower court judge to the bench since Judge Stephanie Davis was tapped two months ago. This is likely because the White House is strategically choosing to hold lower court nominations, including those that may be controversial, in order to avoid muddying the waters for Jackson. This means that the Biden Administration’s 82 nominees submitted to the Senate so far are slightly lower than the 98 judges nominated by President Bush and the 87 nominated by President Trump. Biden is particularly behind on circuit court nominations, having nominated 20, while Trump had made 25 as of this point in his Presidency, while President Bush had nominated 31. Even President Obama, rightfully criticized for a slow pace on nominations, had named 18 appellate nominees by April 1 of the second year of his presidency. With the Senate having confirmed 15 judges, only five of the 24 appellate vacancies currently pending have a nominee.

On the confirmation side, the Biden Administration has run far ahead of its immediate predecessors. For example, the Biden Administration has seen 58 judges confirmed so far, and the Trump Administration only saw 29 judges at this point in its Presidency, while the Obama Administration only saw 19. However, both prior Administrations had run behind their predecessors. Both the Clinton and Bush Administrations, for example, had seen 45-50 judges confirmed by this point in their Presidency, just slightly behind the Biden Administration.

However, on average, a judicial nominee in the Biden Administration has taken 4 months from nomination to confirmation. This means that, in order to be confirmed before the August recess (after which many Democratic senators may be absent campaigning in their home states), nominees need to be sent to the Senate now. Additionally, any nominees sent will likely also run into the limited space in Senate Judiciary Committee hearings, which typically occur every two weeks and include 4-6 nominees each. All this makes the next month or two crucial for nominations. Any nominee nominated later than early May may not see confirmation this year.

To be fair, none of this to say that the Biden administration hasn’t had a significant impact on the federal judiciary. One could argue that, given the bare majority they control, Democrats have outperformed expectations. However, the Administration now faces both an opportunity and a ticking clock. Due to a large number of judges moving to senior status, Biden could easily outperform the 30 judges that Trump was able to confirm to the courts of appeals in his first two years. However, for the Biden Administration to cement its judicial legacy, it will need to urgently snap back onto the lower courts. The first step might be if large batch of nominees, including 5-6 appellate picks, hits the Senate after the Jackson confirmation this week.

Nominations hearings are predictable.  Half the Senators on the Judiciary Committee fawn over the nominees, while the other half pepper them with hypotheticals and questions they know the nominee won’t answer.  For their part, the over-coached nominees avoid all but the softest of softballs, while firmly resisting any attempt to actually probe their thought processes.  As an interview process for a lifetime appointment, the nominations hearing rarely yields genuine insights.

This state of affairs cannot be blamed on one particular entity or party.  Rather, both parties have, over time, contributed to the current playing field, where all nominees need to do is to avoid ticking off the 50 senators they need to get confirmed.  As such, one wonders: how can this performative exercise be more useful?  How can a nominations hearing better illustrate a nominee’s temperament, philosophy, and ideology?

To that end, here are ten questions that, if asked and answered in good faith, can lend some authenticity to the process.  Now, nominees are mindful, of course, of their ethical obligations, and are unlikely to answer any questions regarding privileged communications or about contested matters they are likely to hear.  With that in mind, senators should ask:

What is a legal, political, social, or moral position you previously advocated for that you no longer believe to be correct?

This is a question that I’m surprised hasn’t been asked more to nominees.  Unlike hypothetical questions about future cases, nominees are generally free to say: “I argued X in this case. I lost. And I now realize that the judge got it right.”  Furthermore, getting an answer to this question establishes two important things: first, it affirms that the nominee is willing to acknowledge when they got things wrong and they’re willing to grow from their mistakes; and second, it establishes that they are not set in their views. They’re willing to grow and evolve, an important characteristic to inculcate in someone seeking a lifetime appointment.

When was the last time you changed your mind on a legal, political, or moral issue after a discussion with someone who holds a contrary position?

Federal judges, insulated by lifetime appointments, are constantly at risk of ossifying in their legal views, particularly if those views are never challenged in discussions or arguments.  However, there are many federal judges who maintain their intellectual curiosity even after joining the bench and who are willing to engage with critics and contrarians to better understand and shape their views.  The answer to this question demonstrates both that: 1. the nominee has an open mind and is willing to change their views when they’re wrong; and 2. they’re willing to engage with those they disagree with.

Name a Time in Which You were able to convince another person of the validity of your view/position after a discussion.

A corollary to the previous question, this question also has the benefit of reinforcing the nominee’s ability to persuade others of the positions they hold, particularly important in appellate nominees.

Name a policy/law/regulation that you oppose as a matter of policy but agree is constitutional under current precedent.

The wisdom of a particular law and policy is often equated with its constitutionality.  While there are exceptions (eg. Justice Thomas’ concurrence in Lawrence criticizing the Texas ban on sodomy while finding it constitutional), it is increasingly rare for a judge to find that a policy they find strongly objectionable is not barred by the Constitution or caselaw.  Asking this question will demonstrate that a nominee can parse the difference.

The issue with the question, of course, is that it requires the nominee to make a statement acknowledging the constitutionality of a hypothetical law, which may be barred where a future challenge to that law may come before the judge.  However, as long as the question is focused on relatively uncontroversial areas of law, the nominee may be able to permissibly answer.

Name a policy/law/regulation that you support as a matter of policy but agree is unconstitutional under current precedent.

This is arguably an even harder question to answer than the previous one.  It would require a nominee to acknowledge the current structure of limited government set out in the constitution and note that it prevents, for better or for worse, the government from meaningfully intervening in many problems.  It is nonetheless important that a nominee is able to acknowledge this fact.

What is one thing you would seek to change about the court you’re about to join?

From reforms to PACER to cameras in the courtroom, the movement to democratize access to the federal court system is growing.  An answer to this question should show that the nominee is willing to recognize the shortcomings of the court systems they are seeking to join, to rethink old orthodoxy, and to challenge the status quo in service of justice.

What have you done so far to give back to your community as a lawyer?  What will you do as a judge?

The federal bench has been rightly criticized for setting itself apart from the communities it serves.  As such, nominees who demonstrate a connection with their communities, whether it’s through pro bono service, volunteer work, or other forms of engagement are particularly valuable.  Answering this question would also lead the nominee to demonstrate their willingness to continue such acts as a judge.

What is a bias/prejudice that you currently struggle with?  How do you work to overcome that prejudice?

This is an important question and one that’s asked too little.  While acknowledging any bias or prejudice is widely seen as career suicide, the bottom line is that human beings almost innately carry biases and prejudices with them, and it is only by acknowledging and working against them that one can overcome those prejudices.  Such prejudices do not have to be based on race, gender, or such immutable characteristics.  One could, for example, carry a bias against working moms, against city-dwellers, against west-coast rap fans, against those cheering the Red Sox, or against any identifiable group.  It is particularly important for judicial nominees to acknowledge their biases and work to overcome them given the power and influence they are seeking to take on.

What is a quality you have seen in a judge that you would seek NOT to emulate on the bench?

As awkward as it may be for nominees seeking a judicial position to acknowledge, judges are human.  They are sometimes short-tempered, and often wrong.  A nominee needs to be able to recognize that judges do err and that it is just as important to learn from the mistakes of others as it is to learn from one’s own mistakes.

What is the Biggest Mistake You Have Made in Your Career?  How Would You Seek to Avoid It on the Bench?

And finally, a question that encapsulates the others asked before. One that requires the nominee to demonstrate introspection, forethought, self-awareness, open-mindedness, and a willingness to get things wrong.  Like it or not, all lawyers make mistakes.  The best among us learn and grow from them and it is essential that our judges do as well.

With the nominations hearing of Judge Ketanji Jackson beginning today, it will be interesting to see if the hearings follow the predictable patterns laid out over the past two decades.  If any of the above questions are asked and answered in good faith, however, it will yield significant insight into Judge Jackson’s approach to the bench and the kind of justice she would be.

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.