Vice President Kamala Harris casts two tie-breaking votes in Senate

Our weekly summary of federal news highlights Vice President Kamala Harris’ latest tie-breaking votes and the CDC’s approval of Moderna and J&J booster shots. Read all about it in this week’s edition of the Federal Tap.

Congress is in session

Both the House and Senate are in session next week. Click here to see the full calendar for the first session of the 117th Congress.

Members of Congress not seeking re-election in 2022

Twenty-seven members of Congress—five members of the U.S. Senate and 22 members of the U.S. House—have announced they will not seek re-election. Sixteen members—five senators and 11 representatives—have announced their retirement. All five retiring Senate members are Republicans, and of the retiring House members, eight are Democrats and three are Republicans.

SCOTUS is out of session

The Supreme Court will not hear oral arguments next week. To learn about the 2021-2022 term, click here.

Where was the president last week?

On Monday and Tuesday, Biden remained in Washington, D.C.

On Wednesday, Biden delivered remarks on the infrastructure deal and Build Back Better agenda at the Electric City Trolley Museum in Scranton, Pennsylvania. 

On Thursday, Biden celebrated the 10th anniversary of the dedication of the Martin Luther King, Jr. Memorial in Washington, D.C. He also participated in a CNN Town Hall at the Baltimore Center Stage Pearlstone Theater in Baltimore, Maryland.  

On Friday, Biden departed Washington, D.C., for Wilmington, Delaware. 

Federal Judiciary

  • 85 federal judicial vacancies
  • 31 pending nominations
  • 31 future federal judicial vacancies

Upcoming Article III judicial vacancies

According to the latest vacancy data from the U.S. Courts, there were 31 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Dec. 1, 2020, when U.S. District Court for the Western District of Arkansas Judge Paul K. Holmes announced that he would assume senior status on Nov. 10, 2021. The most recent was on Oct. 13, 2021, when U.S. District Court for the Northern District of Mississippi Judge Michael Mills announced that he would assume senior status on Nov. 1, 2021. Thirteen vacancy effective dates have not been determined because the judge has not announced the date they will leave the bench. The next upcoming vacancy will occur on Nov. 1, when Mills and U.S. District Court for the Eastern District of Virginia Judge John Gibney assume senior status.

For historical comparison, during the week of Oct. 18-23, 2020, there were 64 federal judicial vacancies and four upcoming vacancies in the federal judiciary reported by the U.S. Courts.

The chart below details active vacancies in the federal courts at the start of each month:

U.S. Senate confirms Gelpí, O’Hearn, and Lin to federal judgeships

The U.S. Senate confirmed three of President Joe Biden’s (D) federal judicial nominees to lifetime Article III judgeships on Oct. 18, 19, and 21:

  1. Gustavo Gelpí was confirmed on Oct. 18 to the United States Court of Appeals for the 1st Circuit by a vote of 52-41. Gelpí was nominated to the court on May 12 to replace Judge Juan Torruella, whose judicial service ended upon his death on Oct. 26, 2020. Gelpí was rated Well Qualified by the American Bar Association (ABA). To read more about ABA ratings, click here.
  2. Christine O’Hearn was confirmed on Oct. 19 to the United States District Court for the District of New Jersey by a vote of 53-44. O’Hearn was nominated to the court on April 29 to replace Judge Robert Kugler, who assumed senior status on Nov. 2, 2018. O’Hearn was rated Well Qualified by the ABA.
  3. Tana Lin was confirmed on Oct. 21 to the United States District Court for the Western District of Washington by a vote of 52-45. Lin was nominated to the court on April 29 to replace Judge Marsha Pechman, who assumed senior status in 2016. Lin was rated Well Qualified by the ABA.

To date, 19 of Biden’s nominees have been confirmed. For historical comparison since 1981, the following list shows the date by which the past six presidents had 19 Article III judicial nominees confirmed by the Senate:

  1. President Donald Trump (R) – Dec. 14, 2017
  2. President Barack Obama (D) – Mar. 17, 2010
  3. President George W. Bush (R) – Dec. 6, 2001
  4. President Bill Clinton (D) – Nov. 20, 1993
  5. President George H.W. Bush (R) – Mar. 9, 1990
  6. President Ronald Reagan (R) – Oct. 29, 1981

As of this writing, eight Article III nominees are awaiting a confirmation vote from the U.S Senate, five nominees are awaiting a Senate Judiciary Committee vote to advance their nominations to the full Senate, and 19 nominees are awaiting a hearing before the Senate Judiciary Committee.

Vice President Kamala Harris casts two tie-breaking votes in Senate

Vice President Kamala Harris (D) cast two tie-breaking votes in the Senate on Oct. 20 to invoke cloture on and to confirm the nomination of Catherine Elizabeth Lhamon for assistant secretary for civil rights of the Department of Education. In both votes, the Senate split 50-50 along party lines.

As of Oct. 20, Harris has cast 11 tie-breaking votes in the Senate. Prior to Oct. 20, the last tie-breaking vote she cast was to invoke cloture on the nomination of Rohit Chopra for director of the Consumer Financial Protection Bureau on Sept. 30.

In the past four decades, vice presidents have cast a total of 43 tie-breaking votes. Vice President Mike Pence (R) cast the most during this time period with 13 tie-breaking votes.

John Adams cast the first tie-breaking vote on July 18, 1789. In total, there have been 279 tie-breaking votes from 37 vice presidents. Twelve vice presidents, including Joe Biden (D) and Dan Quayle (R), never cast a tie-breaking vote during their time in office.

Texas legislature approves congressional, legislative redistricting plans

The Texas legislature approved a congressional redistricting plan at the end of its special session on Oct. 18 and sent it to Gov. Greg Abbott (R) for him to either sign or veto. The state Senate approved the plan by a vote of 18-13 strictly along party lines, and the state House approved the measure, 84 to 59, with 82 Republicans and two Democrats in favor and all votes in opposition by Democrats. Both chambers also approved legislative redistricting plans on Oct. 15. Texas is the only state that gained two districts in the U.S. House of Representatives after the 2020 census.

Two lawsuits were filed on Oct. 18 challenging the state’s congressional district plan. A Texas inmate filed a class action lawsuit against the state in federal court arguing that his assignment under the plan to a congressional district in which he does not live violates his right to equal representation. For redistricting purposes, the Texas legislature counted incarcerated persons as residing at their prison location rather than their previous or permanent address. 

Also, a group of Latino civil rights organizations filed a lawsuit in federal court against Gov. Abbott and Deputy Secretary of State Jose Esparza challenging the congressional district plan as a violation of the Voting Rights Act. The complaint says that although Texas added districts due to population growth, the new map diminishes the voting power of Latino voters by failing “to increase the current number of Latino-opportunity districts.”

Connecticut Reapportionment Commission selects final member

The Connecticut Reapportionment Commission selected former state Auditor Kevin Johnston (D) as its ninth member on Oct. 19. Johnston joins four Democratic and four Republican state legislators on the commission, which is now responsible for developing the state’s congressional and legislative redistricting plans. Johnston also served on the Reapportionment Commission after the 2010 census.

Redistricting in Connecticut was originally the responsibility of the eight-member Reapportionment Committee, which was disbanded after it failed to meet a Sept. 15 deadline for redrawing the state’s districts due to delays in the release of census data. 

The Reapportionment Commission must develop congressional and legislative redistricting maps by Nov. 30. These maps must be certified by at least five commission members and are not subject to legislative approval. If the commission cannot reach an agreement on maps, the responsibility for redistricting falls to the Connecticut Supreme Court, which was also responsible for redistricting after the 2010 census.

CDC approves Moderna, Johnson & Johnson booster shots

On Oct. 21, Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky authorized booster shots for certain Americans who received Moderna’s or Johnson & Johnson’s COVID-19 vaccines. Walensky’s approval means that people 65 and older who initially got vaccinated with Moderna’s or Johnson & Johnson’s vaccine can get an additional shot so long as six months have passed since the last dose. 

Walensky also expanded Moderna and Johnson & Johnson booster shot eligibility to include people 18 and older who live in long-term care facilities, work in settings that make them more likely to be exposed to COVID-19, or have underlying health conditions. 

Additionally, Walensky signed off on allowing people to mix vaccine doses from different pharmaceutical companies. The decision allows people who initially got vaccinated with one type of vaccine to use a different type of vaccine for the booster shot. 

The Food and Drug Administration approved booster shots of Johnson & Johnson’s and Moderna’s COVID-19 vaccine on Oct. 20. The CDC Advisory Committee on Immunization Practices, a committee that develops vaccine recommendations, did the same on Oct. 21, a few hours before Walensky issued her decision.  

On Sept. 23, Walensky approved booster shots for the same categories of Americans who received a Pfizer vaccine.