Robe & Gavel: Federal Judicial Vacancy Count released for February

By

Myj Saintyl

Welcome to the February 7 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

Federal judicial vacancy counts are in, dear readers. We have a lot to catch up on, so grab a nice cup of coffee, and let’s gavel in!

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Grants

SCOTUS has not accepted any new cases to its merits docket since our Jan. 17 edition.

Arguments

The Supreme Court will not hear arguments in any cases this week. Click here to read more about SCOTUS’ current term.

Opinions

SCOTUS has ruled on two cases since our Jan. 17 edition. The court has issued rulings in two cases so far this term. 

Click the links below to read more about the specific cases SCOTUS ruled on since Jan. 17:

Jan. 23, 2023

In re Grand Jury was argued before the court on Jan. 9, 2023.

The case: In Re Grand Jury concerned protected documents related to grand jury subpoenas.

The outcome: The court dismissed the case.

Arellano v. McDonough was argued before the court on Oct. 4, 2022.

The case: Under 38 U.S.C. § 5110, disability benefits can be awarded retroactively to the date of discharge if a veteran applies within one year of that date. Service-disabled veteran Adolfo Arellano was discharged from the U.S. Navy in October 1981. Approximately 30 years later, he applied for disability compensation benefits. Arellano challenged the effective date of his benefits, arguing the one-year deadline should have been tolled, or paused, because his disability prevented him from applying for benefits earlier. The Board of Veterans’ Appeals rejected the argument. Arellano appealed his case until it reached the U.S. Court of Appeals for the Federal Circuit. This court held in a 6-6 opinion that Arellano’s effective date was the date his application was received (June 2011), not retroactive to his date of discharge (October 1981). 

The outcome: The court affirmed the decision of the United States Court of Appeals for Veterans Claims, holding that equitable tolling does not apply to §5110(b)(1).

  • As presented by the Federal Circuit, the “equitable-tolling doctrine, as traditionally understood, ‘permits a court to pause a statutory time limit “when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • Feb. 17, 2023: SCOTUS will conference. A conference is a private meeting of the justices.

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 Jan. 1, 2023, to Feb 1, 2023. 

Highlights

  • Vacancies: There have been two new judicial vacancies since the January 2023 report. There are 87 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, 89 of 890 active federal judicial positions are vacant.  
  • Nominations: There were four new nominations since the January 2023 report. 
  • Confirmations: There were no new confirmations since the January 2023 report.

Vacancy count for January 1, 2023

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 United States territorial courts are called 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

Three 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 position vacancies. Nominations are subject to U.S. Senate confirmation.

The following chart tracks the number of vacancies in the United States Courts of Appeals from President Joe Biden’s (D) inauguration 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, 2023.

New nominations

President Biden announced four new nominations since the Jan. 17 report:


The president has announced 152 Article III judicial nominations since taking office on January 20, 2021. For more information on the president’s judicial nominees, click here.

New confirmations

There were no new confirmations since the Jan. 17 report:

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

  • Presidents have made an average of 90 judicial appointments through Feb. 1 of their third year in office. 
  • President Bill Clinton (D) made the most, 128, while President Barack Obama (D) appointed the fewest with 62. 
  • President Clinton’s 128 appointments are the most through a second year. President Obama made the fewest with 62.
  • President Donald Trump’s (D) 234 appointments are the most through four years. President Ronald 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 Feb 21 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

Myj Saintyl compiled and edited this newsletter, with contributions from Samantha Post.