Bold Justice: Federal Judicial Vacancy Count released for October 1

By

Ballotpedia staff

Welcome to the October 12 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

We’re at the halfway point of the court’s October sitting, so let’s pull up a pumpkin and gavel in, shall we? 

Stay up to date on the latest news by following Ballotpedia on Twitter or subscribing to the Daily Brew.

Grants

SCOTUS has not accepted any new cases to its merits docket since our October 4 issue. To date, the court has agreed to hear 39 cases for the 2021-2022 term. SCOTUS dismissed three cases after they were accepted and removed one case after both parties agreed to settle. Eight cases have yet to be scheduled for arguments.

Arguments

The Supreme Court will hear four hours of arguments this week. Click here to read more about SCOTUS’ current term.

Click the links below to learn more about these cases:

October 12

  • Cameron v. EMW Women’s Surgical Center, P.S.C. concerns whether a state official may intervene in a case to defend an invalidated state law. The Kentucky law generally banned the dilation and evacuation abortion method used in the second trimester of pregnancy. The law was struck down in U.S. district court.
    • The questions presented: “Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.”
  • Thompson v. Clark concerns SCOTUS’ favorable termination rule established in Heck v. Humphrey (1994). The favorable termination rule established that before a plaintiff can sue alleging an unconstitutional conviction or imprisonment, the plaintiff must demonstrate that the earlier criminal or appellate proceedings ultimately ended favorably for the plaintiff, indicating their innocence.
    • The questions presented: 
      • “Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has ‘formally ended in a manner not inconsistent with his innocence,’ Laskar v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020), or that the proceeding ‘ended in a manner that affirmatively indicates his innocence,’ Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018); see also Laskar, 972 F.3d at 1293 (acknowledging 7-1 circuit conflict).
      • “Where a Section 1983 plaintiff brings a Fourth Amendment claim for unlawful warrantless entry of his home and the government pursues a justification of exigent circumstances, does the government have the burden to prove exigency existed (as the Third, Sixth, Ninth and Tenth Circuits have held), or does the plaintiff have to prove its non-existence (as the Second, Seventh and Eighth Circuits have held).”

October 13

  • United States v. Tsarnaev concerns the death penalty convictions of Dzhokhar Tsarnaev for 30 criminal offenses related to the 2013 Boston Marathon bombings.
    • The questions presented: 
      • “Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.
      • “Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”
  • Babcock v. Kijakazi concerns the requirements and interpretation of uniformed service for civil service pension payment plans under the Social Security Act.
    • The questions presented: “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?”

In its October 2020 term, SCOTUS heard arguments in 62 cases. Click here to read more about SCOTUS’ previous term.

Opinions

SCOTUS has not issued any rulings in merits docket cases since our October 4 edition. The court has issued rulings in no cases so far this term. Thirty-five cases are still under deliberation.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • October 12: SCOTUS will hear arguments in two cases.
  • October 13: SCOTUS will hear arguments in two cases.
  • October 15: SCOTUS will conference. A conference is a private meeting of the justices.
  • October 29: SCOTUS will conference.

SCOTUS trivia

Many Supreme Court justices have earned law degrees from either Harvard or Yale Law Schools. Which of the following current justices did not earn their law degree from either of those two institutions?

  1. Samuel Alito 
  2. Clarence Thomas
  3. Amy Coney Barrett
  4. Sonia Sotomayor

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. The September report includes nominations, confirmations, and vacancies through October 1. 

Highlights

  • Vacancies: There have been four new judicial vacancies since the August 2021 report. There are 82 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, 86 of 890 active federal judicial positions are vacant.  
  • Nominations: There have been 18 new nominations since the August 2021 report. 
  • Confirmations: There have been five new confirmations since the August 2021 report.

Vacancy count for October 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 in the federal courts, click here.

*Though the U.S. territorial courts are named as district courts, they are not Article III courts. They are created and empowered by the Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Four judges left active status since the previous vacancy count, creating Article III life-term judicial vacancies. The president nominates individuals to fill Article III judicial positions. Nominations are subject to U.S. Senate confirmation.

The following chart tracks the number of vacancies in the United States Courts 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 October 1, 2021.

New nominations

President Joe Biden (D) announced 18 new nominations since the August 2021 report.


Biden has announced 51 Article III judicial nominations since taking office on January 20, 2021. For more information on the president’s judicial nominees, click here.

New confirmations

The Senate confirmed 14 of President Biden’s judicial nominees—nine district court judges and five appeals court judges—since January 2021.

The first confirmations occurred on June 8, 2021, when Julien Xavier Neals and Regina Rodriguez were confirmed to their respective courts. 

Ketanji Brown Jackson, was the first confirmed nominee to receive her judicial commission. The Senate confirmed Jackson on June 14, 2021, and she was commissioned three days later on June 17.

Comparison of Article III judicial appointments over time by president (1981-Present)

  • Presidents have made an average of seven judicial appointments through October 1 of their first year in office. 
  • President Biden has made the most appointments, 14, while President Barack Obama (D) made the fewest appointments with three.  
  • President Ronald Reagan’s (R) 41 appointments were the most through a first year. President Barack Obama (D) made the fewest with 13.
  • President Donald Trump’s (R) 234 appointments signify the most appointments through four years. President Reagan made the fewest through four years with 166.

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

Spotlight: Presidential nominations to federal courts

Hello, gentle readers! Our journey through federal judicial history continues as we visit an era where bacon cost 10¢ a pound, The Age of Innocence by Edith Wharton had just hit the shelves, and you could watch Nosferatu for the first time on the silver screen. Today, we highlight President Warren G. Harding’s (R) federal judicial nominees from 1921 to 1923.

During his time in office, the U.S. Senate confirmed 56 of President Harding’s judicial nominees. The Senate did not vote on two of Harding’s nominees. One nominee declined their nomination.

Among the most notable appointees were four Supreme Court Justices:

President Harding’s first Article III appointee was confirmed on April 27, 2021—Claude Zeth Luse was confirmed to the U.S. District Court for the Western District of Wisconsin. By the end of his first year in office, 14 of Harding’s nominees had been confirmed–one to the U.S. Supreme Court, three to U.S. circuit courts, nine to U.S. district courts, and one to the U.S. Court of Customs Appeals, later known as the U.S. Court of Customs and Patent Appeals. 

Harding averaged 17.6 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.

Looking ahead

We’ll be back on November 1 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

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