Bold Justice: First Federal Vacancy Count released for the Biden Administration

Bold Justice by Ballotpedia

Welcome to the February 8 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. 

For all of us who love following the courts, February has plenty to offer–like a box of chocolates and a rose bouquet. The Supreme Court has been a flurry of activity despite being out of session and Ballotpedia has begun tracking federal judicial vacancies, nominations, and confirmations for the Biden administration. 

Long-term subscribers are familiar with our detailed tracking of the nominations during the Trump administration. Readers can expect the same detailed data for the Biden administration.

Follow us on Twitter or subscribe to the Daily Brew to keep up with all the latest news!

We #SCOTUS, so you don’t have to

The Supreme Court will begin its February sitting during the week of February 22 via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19. SCOTUS will hear arguments in 10 cases for a total of six hours of oral argument.

SCOTUS has agreed to hear 63 cases during its 2020-2021 term. Twelve of those were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

In its 2019-2020 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases before SCOTUS during its January sitting.

February 22

  • Florida v. Georgia concerns the apportionment of waters of the Apalachicola-Chattahoochee-Flint River Basin. It came to the court under the court’s original jurisdiction over disputes between states. 

In brief: In 2013, Florida asked the U.S. Supreme Court for permission to file a complaint, claiming Georgia was using more than its equitable share of the Apalachicola-Chattahoochee-Flint (ACF) River Basin waters. Florida claimed its Apalachicola region needed more water to sustain its ecosystems and fishing industries and asked the court to cap Georgia’s consumption.

The case was first argued before SCOTUS on January 8, 2018, during the October 2017 term. On June 27, 2018, the court remanded the case back to the lower court in a 5-4 decision written by Justice Stephen Breyer. Click here for more information about that ruling.

On October 5, 2020, the court issued an order indicating plans to hear the case “for oral argument in due course” during the 2020-2021 term. On December 31, 2020, the court scheduled the case’s second argument for February 22, 2021.

The issue: Is Florida entitled to equitable use of the ACF River Basin waters and should its request for an injunction to force Georgia to allow an adequate flow of freshwater be sustained?

  • Trump v. Sierra Club was initially scheduled for oral arguments on February 22, 2021. On February 3, 2021, the court removed this case from its February argument calendar, granting the U.S. government’s request to do so, pending further briefings on policy changes enacted by the Biden administration.

February 23

The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. It was consolidated with Barr v. Alcaraz-Enriquez. Both cases involve immigrants—Ming Dai, a native and citizen of China, and Cesar Alcaraz-Enriquez, a native and citizen of Mexico—who appealed to withhold their removal proceedings, i.e. deportation. Immigration judges ruled against withholding removal for both men. In each case, the Board of Immigration Appeals (BIA) upheld the immigration judges’ decisions. Dai and Alcaraz-Enriquez appealed to the 9th Circuit. In Barr v. Dai, the 9th Circuit overturned the BIA and the immigration judge’s ruling, holding Dai was entitled to withholding of removal proceedings. In Barr v. Alcaraz-Enriquez, the 9th Circuit granted the appeal in part and remanded the case to the BIA to reconsider Alcaraz-Enriquez’s withholding of removal claim. The U.S. government appealed to the U.S. Supreme Court.

The issues: “1. Whether a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination.

2. “Whether the court of appeals violated the remand rule as set forth in INS v. Ventura, 537 U.S. 12 (2002) (per curiam), when it determined in the first instance that respondent was eligible for asylum and entitled to withholding of removal.”

February 24

In Sonoma, California, Arthur Lange was driving home. California highway patrol officer Aaron Weikert pursued Lange to conduct a traffic stop and followed him to his home. Once Lange pulled into his driveway, Weikert activated his overhead lights. Lange alleged he did not see Weikert and closed his garage door behind him. Weikert entered the garage, stated he smelled alcohol on Lange’s breath and charged Lange with a misdemeanor offense–driving under the influence. 

At trial, Lange claimed that Weikert’s entry into Lange’s home violated the Fourth Amendment since Weikert did not have a warrant to enter Lange’s home and moved to suppress a video recording of the incident. The trial court concluded that the officer had probable cause, denied the motion to suppress, and issued a conviction for Lange. Later, a civil court ruled that Lange’s arrest was unlawful and an appellate court ruled that the arrest was lawful. On appeal to the California First District Court of Appeal, the court affirmed the conviction. 

The issue: “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.”

Opinions

SCOTUS ruled on three cases since our January 18 issue. The court has issued rulings in 15 cases so far this term. 

Click the links below to read more about the specific cases SCOTUS ruled on since January 18:

February 3

The case: In 2006, Manfredo Salinas filed an application for disability annuity with the U.S. Railroad Retirement Board’s Disability Benefits Division. The application was denied. Salinas appealed to the Board to reconsider and his appeal was denied. In 2013, Salinas filed a new application for disability annuity. The Board granted the annuity. Salinas appealed the annuity’s start date and amount and requested that his earlier applications be reviewed. The Board denied the request. On appeal, the 5th Circuit dismissed Salinas’ petition for review. 

A decision to allow courts to review agency decisions not to reopen cases would expand the definition of final agency actions open to judicial review.

The issue: Whether, under the Railroad Unemployment Insurance and Railroad Retirement Acts, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a final decision subject to judicial review.

The outcome: In a 5-4 opinion, the court reversed the 5th Circuit’s ruling and remanded the case, holding that the Board’s refusal to reopen the prior benefits determination is subject to judicial review. 

Justice Sonia Sotomayor delivered the majority opinion of the court. Justice Clarence Thomas filed a dissenting opinion, joined by Justices Alito, Gorsuch, and Barrett.

In the judicial context, international comity means U.S. courts defer to another nation’s laws when legal action is brought pursuant to those laws. 

FSIA’s expropriation exception (28 U.S.C. § 1605(a)(3)) allows lawsuits against a foreign state involving “property taken in violation of international law.”

The case: The case arises out of opposing rulings in the 7th Circuit and the D.C. Circuit. Jewish survivors of the Hungarian Holocaust sued the Hungarian government and Magyar Államvasutak Zrt., Hungary’s state-owned railway company. The survivors sought damages for property the Hungarian government confiscated during World War II. The 7th Circuit ruled that under the doctrine of international comity, the survivors should first file suit in Hungarian courts. The D.C. Circuit held the opposite view.

The issue: “May the district court abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, where former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II, and where the plaintiffs made no attempt to exhaust local Hungarian remedies?”

The outcome: In a per curiam opinion, the Supreme Court vacated the D.C. Circuit’s ruling and remanded the case for further proceedings consistent with its ruling in Federal Republic of Germany v. Philipp. A per curiam opinion is issued and published collectively by the court and authorship of the decision is not indicated.

The case: Jewish art dealers sold a collection of medieval art to Germany in the 1930s. The heirs of the art dealers claimed the sale was invalid. They filed a lawsuit in the District of Columbia, invoking the expropriation exception of the FSIA. Germany and the SPK argued (1) that the expropriation exception did not apply and (2) that international comity did not allow the claimants to sue in D.C. The D.C. Circuit held the art sale violated international law within the meaning of the expropriation exception. It also held courts could not abstain from presiding over such claims based on international comity.

The issues: “1. Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property.

2. “Whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims”

The outcome: In a unanimous opinion, SCOTUS vacated the D.C. Circuit’s ruling and remanded the case for further proceedings. The court held that FSIA’s expropriation exception includes the domestic takings rule, meaning that a foreign sovereign taking its own nationals’ property is not unlawful under the international law of expropriation.

Chief Justice John Roberts delivered the opinion of the court. 

Grants

On February 3, 2021, SCOTUS granted review in one case for one hour of oral argument, to be scheduled during its 2020-2021 term:

The case: The Natural Gas Act (“NGA”) allows private gas companies to exercise eminent domain if certain jurisdictional requirements are met. Natural gas company PennEast Pipeline Company (“PennEast”) was scheduled to build a natural gas pipeline through part of New Jersey. PennEast obtained federal approval and sued for access to the properties under the NGA in federal district court. The State of New Jersey (“New Jersey”) sought to dismiss PennEast’s suits, arguing that the company did not satisfy the NGA’s jurisdictional requirements and that the state held immunity from the suit under the Eleventh Amendment to the U.S. Constitution. The U.S. District Court for the District of New Jersey allowed PennEast immediate access to the properties at issue. New Jersey appealed to the U.S. Court of Appeals for the 3rd Circuit, which held that New Jersey was immune and vacated the district court’s orders. 

The issue: “Whether the NGA delegates to FERC certificate holders the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.”

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • February 19: SCOTUS will conference. A conference is a private meeting of the justices.
  • February 22: 
    • SCOTUS will release orders. 
    • SCOTUS will hear arguments in one case.
  • February 23: SCOTUS will hear arguments in two cases.
  • February 24: SCOTUS will hear arguments in one case.
  • February 26: SCOTUS will conference.

SCOTUS trivia

When was the first time an outgoing Chief Justice administered the oaths to an incoming Chief Justice?

1. 1969

2. 1986

3. 2005

4. 1946

Choose an answer to find out!

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 January 1 to February 1. This edition also marks the first in Ballotpedia’s coverage of the Biden administration.

Highlights

  • Vacancies: There have been 11 new judicial vacancies since the December 2020 report. There are 57 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 60 of 890 active federal judicial positions are vacant.
  • Nominations: There were no new nominations since the December 2020 report.
  • Confirmations: There have been no new confirmations since the December 2020 report.
  • Comparison to previous presidential administrations: Not including appointments to the U.S. Supreme Court, Presidents Donald Trump (R) and George H.W. Bush (R) made their first Article III judicial appointments by June 1 of the first year of their presidencies. Presidents George W. Bush (R) and Ronald Reagan (R) made their first appointments by August 1, and Presidents Barack Obama (D) and Bill Clinton (D) made their first Article III judicial appointments by October 1 of their first years in office.

Vacancy count for February 1, 2021

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

Eleven judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, the president nominates a replacement to fill the vacancies. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Joe Biden (D) to the date indicated on the chart.

U.S. District Court vacancies

The following map shows the number of vacancies in the United States District Courts as of February 1, 2021.

New nominations

As of February 1, 2021, President Joe Biden (D) had not announced any new nominations. The average number of judicial appointees per president through February 1 of the first year is 0.

For comparison with Biden’s six immediate predecessors:

  • President Ronald Reagan (R) made the most appointments through his first year with 41. President Barack Obama (D) made the fewest with 13.
  • President Donald Trump (R) made the most appointments through four years with 234. President Ronald Reagan made the fewest through four years with 166.
  • President Donald Trump made no Article III nominations by February 1 of his first year in office.

According to the Washington Post, the Biden administration will not review potential nominees in advance through the American Bar Association (ABA). Rather, the candidates’ ratings will come after the formal nomination. 

Since 1953, Presidents George W. Bush and Donald Trump are the only presidents who are known to not consult the ABA before submitting judicial nominees to the Senate.

New confirmations

As of February 1, 2021, there have been no federal judicial confirmations during the Biden administration.

As of February 1 of the first year of President Donald Trump’s presidency, the U.S. Senate had not confirmed any Article III judicial nominees.

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, check out our list of individuals the president has nominated.

Justice on center stage

This edition of Bold Justice marks the conclusion of our closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Amy Coney Barrett

Barrett has been an associate justice since October 26, 2020. President Donald Trump (R) nominated Barrett on September 29, 2020, to succeed Ruth Bader Ginsburg. The U.S. Senate voted to confirm Barrett 52-48 on October 26, 2020.

Image of Elena Kagan

Before joining the U.S. Supreme Court, Barrett was a judge with the U.S. Court of Appeals for the 7th Circuit (2017-2020). Before that, she was a law professor with Notre Dame Law School, and a private practice attorney in Washington, D.C. (1999-2001). Click here to learn more about Barrett’s professional career.

Barrett was born in 1972 in New Orleans, Louisiana. She earned her bachelor’s degree, magna cum laude, in English literature from Rhodes College in 1994 and her J.D., summa cum laude, from Notre Dame Law School in 1997.

Keep an eye on the horizon for a new special segment in future editions of Bold Justice!




About the author

Kate Carsella

Kate Carsella is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.