A record number of Appeals Court confirmations

The Daily Brew

Welcome to the Monday, October 7, Brew. Here’s what’s in store for you as you start your day:

  1. Trump has appointed the third-most federal judges at this point in his presidency in the last 100 years
  2. U.S. Court of Appeals for the D.C. Circuit panel upholds net neutrality repeal 
  3. Voters in Memphis, Tennessee, approve sales tax for public safety officer benefits

Trump has appointed the third-most federal judges at this point in his presidency in the last 100 years

Three years into his presidency, Donald Trump has appointed 152 Article III federal judges through October 1. Going back through history to the Theodore Roosevelt administration, only two previous presidents—Bill Clinton and George W. Bush—appointed more judges at the same point during their first term. Of these, 43 were federal appeals court judges—the most among this group of presidents. 

Presidents appoint Article III federal judges for what can be life terms that must also be confirmed by the Senate. These include judges on the U.S. Supreme Court, U.S. Courts of Appeal, U.S. District Courts, and the Court of International Trade. 

From the Theodore Roosevelt administration to the present, the average number of presidential judicial appointments through Oct. 1 of their third year in office is 86.5.

Table of judicial appointments by president

Here are some other insights regarding judicial appointments through this point:

  • The median number of Supreme Court justices appointed is two. William Taft (R) appointed the most—five. Trump has appointed 2 justices—Neil Gorsuch and Brett Kavanaugh—so far.
  • The median number of U.S. Court of Appeals appointees is 18. Trump has appointed 43—which is 24% of the 179 judgeships on the appeals courts. The next most was Jimmy Carter, who appointed 36. Presidents Theodore Roosevelt (R) and Woodrow Wilson (D) appointed the fewest with five each. 
  • The median number of U.S. District Court appointees is 58. Clinton appointed the most with 135, and Theodore Roosevelt appointed the fewest with 10. Trump has appointed 105 district court judges so far. Those appointments make up 16 percent of the 677 judgeships across the district courts.

U.S. Court of Appeals for the D.C. Circuit panel upholds net neutrality repeal 

Speaking of federal courts, let’s turn to a recent decision from the U.S. Court of Appeals for the D.C. Circuit. A three-judge panel of this court upheld the FCC’s 2018 repeal of net neutrality rules last week—on October 1—but struck down the agency’s preemption of state and local net neutrality regulations. Let’s back up a bit to put this ruling in context.

The Federal Communications Commission (FCC) established net neutrality—which is the concept that internet service providers (ISPs) should treat all internet traffic equally—through an order issued in February 2015. These rules classified ISPs as regulated public utilities that were prohibited from blocking or slowing web traffic or providing faster internet to certain content providers.

In February 2018, the FCC then repealed this order and ended the designation of ISPs as regulated public utilities. The FCC’s 2018 action also expressly preempted state and local authorities from imposing their own net neutrality rules or applying more stringent requirements on ISPs. 

Following that decision, attorneys general from 22 states and the District of Columbia asked the D.C. Appeals Court to reinstate the FCC’s net neutrality regulations in August 2018. They said that the repeal of net neutrality would harm consumers, public safety, and existing regulations and claimed the FCC was not authorized to preempt state and local laws on the matter.

Last week’s court ruling also directed the agency to consider how the repeal would affect public safety, broadband subsidies, and the regulation of cable pole attachments. The panel was comprised of two judges appointed by President Obama and a senior judge appointed by President Reagan.

The governors of six states—Montana, New York, Hawaii, New Jersey, Rhode Island, and Vermont—have issued executive orders requiring internet service providers that do business with each state to comply with net neutrality rules. Five of those states have Democratic governors and Vermont Gov. Phil Scott is a Republican. Such orders only apply to ISPs that directly do business with state government agencies and do not apply to all ISPs in the state. Six states—California, Colorado, Maine, Oregon, Vermont, and Washington—have passed legislation relating to net neutrality. Five of those states were Democratic trifectas and one—Vermont—had divided government. Legislators in 29 states introduced net neutrality legislation during 2019.

Voters in Memphis, Tennessee, approve sales tax for public safety officer benefits

In addition to re-electing Jim Strickland last week to another four-year term as mayor of Memphis, Tennessee, voters also approved an increase to the city’s sales tax. 

The measure increases the sales tax by 0.5%—to 2.75%— in order to fund health benefits and pensions for fire and police public safety officers to the levels provided in 2014 and 2016, respectively. Any additional revenue generated by the tax increase will be earmarked for roads and pre-kindergarten education. The sponsors of the initiative estimated the increase would provide $52 million in additional revenue annually with $34 million going toward health benefits. The new 2.75% local sales tax is the maximum rate allowed under Tennessee state law. The initiative was approved, 52.5% to 47.5%. 

This measure was put on the ballot through a successful initiative petition campaign driven by the Memphis Police Association and the Memphis Fire Fighters Association, which submitted about 140,000 signatures to qualify the measure for the ballot in January. A total of 38,450 valid signatures were required to put the measure on the ballot. 

Local option sales taxes apply only to the first $1,600 of a single purchase in Tennessee. The 0.5% additional tax rate proposed by this referendum would therefore result in a maximum $8 increase in sales tax on the purchase of a single item. Now that the measure has been approved, the Memphis city council will have to give final approval of the tax increase in the 2020 city budget. 

Before this election, Memphis last increased its sales tax rate in 1984 from 1.5% to 2.25%.