Nominee announced for only open U.S. Circuit Court of Appeals vacancy

Ballotpedia's Bold Justice

Welcome to the April 6 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Stay up-to-date on the latest news by following us on Twitter or subscribing to the Daily Brew.

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The Supreme Court justices will not hear arguments this week.

On April 3, the court announced it was postponing the eight hours of oral argument originally scheduled as part of its April sitting. The court had previously postponed the 11 hours of oral argument originally scheduled for its March sitting. The delays were “in keeping with public health precautions recommended in response to COVID-19.”

Click here to read more about SCOTUS’ current term. Click here for Ballotpedia’s coverage of the coronavirus pandemic.


SCOTUS has ruled on six cases since our March 23 issue. The court has issued rulings in 20 cases so far this term.  The court released opinions in two cases on April 6. We’ll cover those in our next edition of Bold Justice!

Click the links below to read more about the specific case SCOTUS ruled on since March 23:

  • March 23

    • Comcast Corp. v. National Association of African American-Owned Media was argued before the court on November 13, 2019.

      The case: Entertainment Studios, an African American-owned television network operator, sued Comcast Corporation alleging it refused to contract with Entertainment Studios because of race. Entertainment Studios claimed Comcast violated 42 U.S.C. § 1981. 42 U.S.C. § 1981 provides that “all persons . . . have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”

      The U.S. District Court for the Central District of California dismissed Entertainment Studio’s claims. On appeal, the 9th U.S. Circuit Court of Appeals reversed and remanded the district court’s ruling.

      The outcome: In a unanimous opinion, the court vacated and remanded the 9th Circuit’s decision. The court held 42 U.S.C. § 1981 does not provide an exception to but-for legal principle, in which a plaintiff must prove his or her injury would not have occurred but for the defendant’s illegal conduct. In other words, African American-owned television network operator Entertainment Studios must plead and prove that Comcast Corporation would have acted differently if Entertainment Studios were not owned by African-Americans.

      Justice Neil Gorsuch wrote the opinion. Justice Ruth Bader Ginsburg filed an opinion concurring in part and concurring in the judgment.

    • Allen v. Cooper was argued before the court on November 5, 2019.

      The case: Frederick Allen, a videographer retained to document the salvaging of the state-owned ship, Queen Anne’s Revenge, sued North Carolina for copyright infringement. Allen also asked the court to declare unconstitutional N.C. Gen. Stat. § 121–25(b), making public records of photos, videos, recordings, and other documentary materials of a shipwreck. Allen claimed the law was passed in bad faith. The U.S. District Court for the Eastern District of North Carolina held the state was not protected from immunity under the Copyright Remedy Clarification Act. On appeal, the 4th Circuit reversed and remanded the district court’s ruling.

      The outcome: The court affirmed the 4th Circuit’s decision in a 9-0 ruling, holding Congress did not have the authority to abrogate—or take away—state sovereign immunity from copyright infringement suits under the Copyright Remedy Clarification Act.

      Justice Elena Kagan delivered the opinion of the court. Chief Justice John G. Roberts and Justices Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh joined. Justice Clarence Thomas joined in part and filed an opinion concurring in part and in the judgment. Justice Stephen Breyer also filed an opinion concurring in the judgment, joined by Justice Ginsburg.

      In her opinion, Justice Kagan wrote that Supreme Court precedent established in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) “precluded Congress from using its Article I powers—including its authority over copyrights—to deprive States of sovereign immunity.”

    • Kahler v. Kansas was argued before the court on October 7, 2019.

      The case: James Kahler was convicted of capital murder and sentenced to death. According to Oyez, Kansas law prohibits a jury from considering mental disorders as a criminal defense “insofar as it shows ‘that the defendant lacked the mental state required as an element of the offense charged.’”

      On appeal, Kahler argued the prosecution violated his right to a fair trial. The Kansas Supreme Court rejected Kahler’s argument, affirming his conviction and sentence. Kahler appealed to the U.S. Supreme Court, arguing Kansas law violates the 8th Amendment’s prohibition of cruel and unusual punishments and the 14th Amendment’s due process guarantee.

      The outcome: In a 6-3 opinion, the court affirmed the ruling of the Kansas Supreme Court. The court held that the Constitution’s due process clause does not compel “the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime” in Kansas.

      Justice Kagan wrote the opinion of the court. Justice Breyer filed a dissenting opinion, joined by Justices Ginsburg and Sotomayor.

    • Guerrero-Lasprilla v. Barr was argued before the court on December 9, 2019.

      The case: Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported in 1998 after being convicted of aggravated felonies. In 2016, Guerrero-Lasprilla petitioned to reopen his removal proceedings. An immigration judge denied the petition on the grounds it was untimely. The Board of Immigration Appeals denied Guerrero-Lasprilla’s appeal. The 5th U.S. Circuit Court of Appeals also dismissed the petition for lack of jurisdiction. The case was consolidated with Ovalles v. Barr.

      The outcome: The U.S. Supreme Court vacated and remanded the 5th Circuit’s ruling with a 7-2 vote in favor of Guerrero-Lasprilla and Ovalles. Congress placed limits on judicial review of agency decisions to deport people who have committed certain crimes. The court ruled that those limits did not apply to Guerrero-Lasprilla v. Barr and Ovalles v. Barr.

      Justice Breyer delivered the opinion of the court. Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined the opinion. Justice Thomas wrote a dissenting opinion joined, in part, by Justice Alito.

    • Davis v. United States was not argued before the court.

      The case: A federal grand jury indicted Charles Davis Jr. for being a felon in possession of a firearm and for possessing drugs with the intent to distribute them. The U.S. District Court for the Northern District of Texas sentenced Davis to four years and nine months in prison. The district court ordered consecutive sentences for pending state charges against Davis.

      Davis did not object to his sentence before the district court. He then appealed to the 5th U.S. Circuit Court of Appeals. The 5th Circuit did not employ plain error review and affirmed the district court’s decision. Davis appealed to the U.S. Supreme Court.

      The outcome: In a per curiam opinion, the court vacated and remanded the 5th Circuit’s ruling. According to SCOTUSblog, the court held “there is no legal basis for the U.S. Court of Appeals for the 5th Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.”

      per curiam decision is issued collectively by the court. The authorship is not indicated.

  • March 30

    • CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd. was argued before the court on November 5, 2019.

      The case: An abandoned anchor in the Delaware River pierced the hull of the Athos I, an oil tanker, causing nearly 264,000 gallons of crude oil to spill into the river. The cost of the cleanup was $143 million. Frescati, the shipowner, paid for the cleanup effort and was later reimbursed for $88 million by the U.S. federal government. Frescati and the U.S. sued CITGO, the intended oil recipient, for a portion of the costs.

      A U.S. district judge found CITGO was not liable to pay for the cleanup effort. On appeal, the 3rd Circuit affirmed in part, vacated in part, and remanded the case. On remand, the district court held CITGO was liable to Frescati for breach of contract, holding Frescati was a beneficiary of CITGO’s safe berth warranty. On appeal a second time, the 3rd Circuit affirmed in part the district court’s judgment in favor of the U.S. regarding CITGO’s breach of contract liability.

      The outcome: The court affirmed the 3rd Circuit’s decision in a 7-2 ruling, holding a safe berth clause in a voyage charter contract is a guarantee of a ship’s safety.

      Justice Sotomayor wrote the opinion of the court. In her opinion, Justice Sotomayor wrote, “The charterer’s assurance of a safe berth is the entire root of the safe-berth clause, and crucially, it is not subject to qualifications or conditions.”

      Justice Thomas filed a dissenting opinion, joined by Justice Alito.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest in April, pending further notice:

  • April 6: SCOTUS will release orders and/or opinions.

  • April 17: SCOTUS will conference. A conference is a private meeting of the justices.

  • April 20: SCOTUS will release orders and/or opinions.

  • April 24: SCOTUS will conference.

  • April 27: SCOTUS will release orders and/or opinions.

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from March 3 to April 2.


  • Vacancies: There have been three new judicial vacancies since the February 2020 report. As of April 2, 75 (or 8.6%) of 870 active Article III judicial positions on the courts covered in this report were vacant.

    Including the United States Court of Federal Claims and the United States territorial courts, 81 of 890 active federal judicial positions are vacant.

  • Nominations: There have been three new nominations since the February 2020 report.

  • Confirmations: There have not been any new confirmations since the February 2020 report.

Vacancy count for April 2, 2020

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here.

*Though the United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Three judges left active status, creating Article III vacancies. As Article III judicial positions, these vacancies must be filled by a presidential nomination. Nominations are subject to Senate confirmation.

The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017 to April 2, 2020.

Nominee announced for only open U.S. Circuit Court of Appeals vacancy

On March 30, the president said he would nominate Judge Cory Wilson to a seat on the U.S. Court of Appeals for the 5th Circuit. Wilson had previously been nominated to a seat on the U.S. District Court for the Southern District of Mississippi. The Senate Judiciary Committee held a hearing on his nomination on January 8 but no action further had been taken.

Wilson was nominated to succeed Judge E. Grady Jolly, who assumed senior status on October 3, 2017. Jolly’s former seat on the 5th Circuit is the only vacancy among the 13 U.S. Courts of Appeal. The last time there was a single federal appeals court vacancy was in July 1984.

As of publication, there are two upcoming Court of Appeals vacancies. Andrew Brasher was already confirmed to succeed Judge Ed Carnes on the 11th Circuit. Carnes is expected to assume senior status on June 30. Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit announced he would retire on September 1. Justin Walker was nominated April 3 to succeed Griffith.

U.S. District Court vacancies

The following map displays federal district court vacancies as of April 2.

New nominations

President Trump has announced three new nominations since the February 2020 report.

  • Hala Jarbou, to the U.S. District Court for the Western District of Michigan.

  • Cory Wilson, to the U.S. Court of Appeals for the 5th Circuit.

  • Kristi Haskins Johnson, to the U.S. District Court for the Southern District of Mississippi.

The president has announced 252 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between March 3 and April 2, 2020, the Senate did not confirm any of the president’s nominees to Article III courts.

Since January 2017, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals the president has nominated.

Looking ahead
We’ll be back May 4 with a new edition of Bold Justice.

Click here to learn more.