Robe & Gavel: Federal Judicial Vacancy Count released for April 1

By

Ballotpedia staff

Welcome to the April 11 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

In the ever-changing landscape of the federal judiciary, new confirmations outpaced vacancies in March. President Joe Biden (D) leads all presidents since 1981 in successful Article III appointments through this point in a presidency. SCOTUS has also been active, with new cases granted for argument and new opinions issued—and the confirmation of a new justice. Want to know more? Gavel in and read on.

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Ketanji Brown Jackson confirmation

On April 7, the U.S. Senate confirmed Judge Ketanji Brown Jackson to be the next U.S. Supreme Court justice by a vote of 53-47. President Biden nominated Jackson on February 28, 2022, to succeed Justice Stephen Breyer, who plans to retire at the beginning of the court’s summer recess in late June or early July. Upon her swearing in, Jackson will become the first Black woman to serve on the Supreme Court. 

Prior to her confirmation, Jackson served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit and, before that, on the U.S. District Court for the District of Columbia. She earned a bachelor’s degree in government, magna cum laude, and a J.D., cum laude, from Harvard University in 1992 and 1996, respectively.

Grants

SCOTUS has accepted three new cases since our last issue. To date, the court has agreed to hear nine cases during its 2022-2023 term. The court has not yet scheduled any of the cases for argument.

  • National Pork Producers Council v. Ross concerns the constitutionality of the conditions California’s Proposition 12 imposes on pork producers nationwide so that they can sell pork in California. It came to the court from the U.S. Court of Appeals for the 9th Circuit. The petitioners presented two questions to the court: “1. Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant Commerce Clause, or whether the extraterritoriality principle described in this Court’s decisions is now a dead letter. 2. Whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a Pike claim.”
  • Cruz v. Arizona concerns the proper application of U.S. Supreme Court precedent during state capital cases’ sentencing and appellate review. The question presented to the court is: “Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.” The case originated from the Arizona Supreme Court.
  • Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith concerns the definition of a transformative work for purposes of the fair use defense under federal copyright law. The question the court will decide is: “What does it mean for a work of art to be ‘transformative’ as a matter of law under the Copyright Act?” The case came from the U.S. Court of Appeals for the 2nd Circuit.

Arguments

The Supreme Court will not hear oral arguments this week. The court is scheduled to begin hearing arguments for its April sitting—the last sitting of the term—on April 18. The court will hear arguments in the term’s final 10 cases between April 18 and April 27. Click here to read more about SCOTUS’ current term.

Opinions

SCOTUS has issued two rulings since our March 28 edition. The court has decided 11 cases so far this term, two of which were decided without argument. To date, 40 cases argued before the court this term remain undecided.

March 31

Justice Elena Kagan authored the court’s majority opinion. Justice Stephen Breyer filed a dissenting opinion.

April 4

  • In Thompson v. Clark, the court reversed the U.S. Court of Appeals for the 2nd Circuit’s ruling in a 6-3 decision. The court found that a plaintiff suing for malicious prosecution under the Fourth Amendment is not required to show the plaintiff’s criminal prosecution ended with a not guilty verdict. Rather, the favorable termination rule requires only that such prosecution ended in an outcome other than a conviction, such as a prosecutor dismissing the charges.

Justice Brett Kavanaugh delivered the majority opinion. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • April 14: SCOTUS will conference. A conference is a private meeting of the justices.
  • April 18: SCOTUS will begin its April argument sitting.

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 March report covers nominations, confirmations, and vacancies from March 2 through April 1. 

Highlights

  • Vacancies: There were four new judicial vacancies in February. There were 72 vacancies out of 870 active Article III judicial positions. Including the U.S. Court of Federal Claims and the U.S. territorial courts, 74 of 890 active federal judicial positions were vacant.  
  • Nominations: There were no new nominations. 
  • Confirmations: There were 12 new confirmations.

Vacancy count for April 1, 2022

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 established by Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Four judges left active status since the previous report, 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 April 1, 2022.

New nominations

President Joe Biden (D) announced no new nominations during the month of March.

Biden has announced 83 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.

New confirmations

The U.S. Senate confirmed 12 nominees during the month of March. 

As of April 1, 2022, the Senate had confirmed 58 of President Biden’s judicial nominees—43 district court judges and 15 appeals court judges. This count does not include Ketanji Brown Jackson’s confirmation to the Supreme Court on April 7.

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

  • Presidents have appointed an average of 39 judges through April 1 of their second year in office.
  • Biden made the most appointments through April 1 of his second year with 58, followed by President Ronald Reagan (R) with 54. President Barack Obama (D) made the fewest with 19.
  • President Donald Trump (R) made the most appointments through four years with 234. 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.

Looking ahead

We’ll be back on April 18 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

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