Bold Justice: Federal Judicial Vacancy Count released for March 1

By

Ballotpedia staff
Bold Justice by Ballotpedia

We #SCOTUS and you can, too!

The Supreme Court will begin its March sitting during the week of March 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 nine cases for a total of seven hours of oral argument.

On March 5, the court’s Public Information Office reported that all nine justices had been vaccinated against COVID-19.

Click the links below to preview the cases on the docket for the March sitting:

March 22-24

March 29-31

Grants

SCOTUS accepted two cases since our March 1 issue, for a total of two hours of oral argument. The cases will be scheduled for argument during the court’s 2021-2022 term, which is slated to begin on October 4, 2021. To date, the court has accepted seven cases for the upcoming October term. 

José Luis Vaello-Madero, a Puerto Rican-born United States citizen, was receiving SSI benefit payments while living in New York. Vaello-Madero returned to Puerto Rico to care for his wife, who had taken ill. The Social Security Administration (SSA) discontinued his benefits based on a statutory requirement that an SSI beneficiary live within the 50 U.S. states, the District of Columbia, or the Northern Mariana Islands.

The federal government filed suit in the U.S. District Court for the District of Puerto Rico for repayment of benefits Vaello-Madero received after moving to Puerto Rico. Vaello-Madero raised an affirmative defense that the SSI statute violated his right to equal protection under the Fifth Amendment because it excluded Puerto Rico residents. The district court ruled in Vaello-Madero’s favor, holding that Congress had no rational basis for discriminating against U.S. citizen residents in Puerto Rico in passing the SSI provisions. On appeal, the U.S. Court of Appeals for the 1st Circuit affirmed, or upheld, the ruling. Click here to learn more about the case’s background.

The federal government petitioned the Supreme Court for review and asked the court: “Whether Congress violated the equal-protection component of the Due Process Clause of the Fifth Amendment by establishing Supplemental Security Income-a program that provides benefits to needy aged, blind, and disabled individuals-in the 50 States and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.”

David Babcock was a dual-status technician with the Michigan National Guard who participated in the Civil Service Retirement System (“CSRS”) and paid Social Security taxes on certain qualifying income. A dual-status technician is a federal civilian employee assigned to a civilian position while serving in the National Guard.

Upon his retirement, Babcock applied for Social Security benefits. The SSA granted Babcock’s application but reduced his benefits since he also received CSRS pension payments. Babcock asked the SSA to reconsider, citing the SSA’s uniformed services exception and arguing that his pension plan was covered. The SSA did not change its determination. On appeal, an administrative law judge and the SSA Appeals Council upheld the determination. Babcock filed suit in the U.S. District Court for the Western District of Michigan. 

In other, similar cases, the U.S. Court of Appeals for the 8th Circuit and the U.S. Court of Appeals for the 11th Circuit issued opposite rulings on whether dual-status technicians are exempt, creating a circuit split. A circuit split occurs when federal appeals courts issue opposite interpretations of federal law.

In Babcock’s case, the Western District of Michigan ruled that his uniformed service did not qualify under the exception. On appeal, the U.S. Court of Appeals for the 6th Circuit affirmed that ruling. Click here to learn more about the case’s background. 

Babcock appealed to the Supreme Court, asking: “Is a civil-service pension payment based on dual-status military technician service to the National Guard a payment based wholly on service as a member of a uniformed service?”

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.

Opinions

SCOTUS issued two opinions since our March 1 issue. The court has issued 18 opinions so far this term. Four cases were decided without argument.

On March 4, the U.S. Supreme Court issued opinions in the following cases:

In a 7-2 opinion, the court reversed the 9th Circuit’s ruling and remanded the case for further proceedings. The court ruled that FOIA’s Exemption 5, or its deliberative process privilege, protects in-house draft biological opinions made during deliberation and before a final decision, including when the draft reflects the agencies’ final views about a proposal. 

A biological opinion is a document stating the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service’s opinion on whether a federal agency action is likely to harm listed species or critical habitat.

Justice Amy Coney Barrett delivered the majority opinion, her first since joining the court. Justice Stephen Breyer filed a dissenting opinion, joined by Justice Sonia Sotomayor.

  • Pereida v. Barr concerned the burden of proof required for nonpermanent residents to be eligible for removal relief under the Immigration and Nationality Act (INA). The case originated from the U.S. Court of Appeals for the 8th Circuit and was argued before SCOTUS on October 14, 2020. The case was originally scheduled for argument during the 2019-2020 term but was postponed due to public health precautions recommended in response to COVID-19.

In a 5-3 ruling, the court affirmed the 8th Circuit’s judgment. The court ruled that to cancel a lawful removal order, a nonpermanent resident must show they have not been convicted of a disqualifying offense under the INA. The petitioner did not meet that burden of proof because it was unclear whether a disqualifying offense was used as part of his conviction.

Justice Neil Gorsuch wrote the majority opinion, his first of the current term. Justice Stephen Breyer filed a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan. Justice Amy Coney Barrett took no part in the consideration or decision of the case.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • March 19: SCOTUS will conference. A conference is a private meeting of the justices.
  • March 22: 
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in one case.
  • March 23: SCOTUS will hear arguments in one case.
  • March 24: SCOTUS will hear arguments in one case.
  • March 26: SCOTUS will conference. 
  • March 29: 
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in three cases.
  • March 30: SCOTUS will hear arguments in one case.
  • March 31: SCOTUS will hear arguments in two cases.

SCOTUS trivia

In what year was the Supreme Court Building, SCOTUS’ permanent home, built?

a) 1801
b) 1935
c) 1835
d) 1911

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 February 1 to March 1. 

Highlights

  • Vacancies: There have been seven new judicial vacancies since the January 2021 report. There are 64 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, 67 of 890 active federal judicial positions are vacant.
  • Nominations: There were no new nominations since the January 2021 report.
  • Confirmations: There have been no new confirmations since the January 2021 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 March 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 last 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 March 1, 2021.

New nominations

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

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 March 1 of his first year in office.

In a March 1 interview in The New York Times, Senate Judiciary Committee Chairman Sen. Dick Durbin (D-IL) said he would adhere to the precedent established by his predecessors–Sen. Lindsey Graham (R-S.C.), chairman during the 116th Congress, and Sen. Chuck Grassley (R-IA), chairman during the 115th Congress–and follow the blue-slip tradition for district court nominees but not for circuit court nominees. Durbin said he might reconsider following the blue slip tradition with district court nominees. Click here to learn more about the blue slip policy for federal judicial nominations.

New confirmations

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

As of March 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 current federal judicial vacancies.

Or, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

This edition of Bold Justice sends us back to the first decade of the new millennium as we continue our travels through the history of past presidential administrations’ federal judicial appointments. Today, we’re taking a look at President George W. Bush’s (R) judicial nominees.

During his two terms in office, President Bush made 340 judicial appointments. Of those, 328 were Article III judges. Among the most notable are Supreme Court Chief Justice John Roberts and Justice Samuel Alito. 

When President Bush assumed office in January 2001, he inherited 84 life-term vacancies out of 862 total Article III judgeships (9.74%), the third-highest vacancy percentage since the inauguration of President Ronald Reagan (R) in January 1981. 

Of his Article III appointees–not including Supreme Court nominations–Bush appointed 63 judges to the United States Courts of Appeal, 261 judges to U.S. district courts, and two judges to the U.S. Court of International Trade. 

Looking ahead

We’ll be back on March 22 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Jace Lington, Brittony Maag, and Sara Reynolds.