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Brittony Maag

Brittony Maag is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org

Tennessee Gov. Lee nominates supreme court justice

Tennessee Gov. Bill Lee (R) selected Sarah K. Campbell as his nominee to fill the vacant seat on the Tennessee Supreme Court. Lee’s announcement came on Jan. 12 after consideration of the three finalists put forward by the Governor’s Council for Judicial Appointments: Campbell and Tennessee Court of Appeals Judges Kristi Davis and William Neal McBrayer. Campbell will succeed Justice Cornelia Clark, who passed away from cancer on Sep. 24. Campbell is Lee’s first nominee to the five-member supreme court.

Under Tennessee law, state supreme court justices are selected by the governor with help from a nominating commission. The nominee must then be confirmed by the Tennessee State Legislature. While Tennessee state law changed in 2014 to eliminate the judicial nominating commission and require legislative approval of the governor’s appointee, Gov. Bill Haslam’s Executive Order No. 54 and Lee’s subsequent Executive Order No. 87 re-established the judicial nominating commission for appointments. Accordingly, Tennessee’s process is effectively assisted appointment with legislative confirmation.

Before her nomination to the Tennessee Supreme Court, Campbell worked as the state of Tennessee’s associate solicitor general and special assistant to the attorney general. Her career experience includes working at the Washington, D.C. law firm Williams & Connolly LLP and clerking for U.S. Supreme Court Justice Samuel Alito and 11th Circuit Judge William Pryor.

Campbell earned a bachelor’s degree from the University of Tennessee and master’s and J.D. degrees from Duke University.

In 2021, there were 19 supreme court vacancies in 17 of the 29 states where replacement justices are appointed instead of elected. To date, 16 of those 29 vacancies have been filled. So far in 2022, there have been four announced supreme court vacancies.

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SCOTUS accepts three cases for argument on Jan. 10

Image of the front of the United States Supreme Court building

The Supreme Court of the United States (SCOTUS) accepted three additional cases for argument during its 2021-2022 term on Jan. 10:

  1. United States v. Washington
  2. Kemp v. United States
  3. Siegel v. Fitzgerald

United States v. Washington concerns state workers’ compensation laws and intergovernmental immunity. The question presented to the court in Washington is: “Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. 3172(a), which permits the application of state workers’ compensation laws to federal facilities ‘in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.’” Washington originated from the U.S. Court of Appeals for the 9th Circuit.

Kemp v. United States concerns the Federal Rule of Civil Procedure governing court procedures in civil cases. The court will consider the following question: “Whether Rule 60(b)(1) authorizes relief based on a district court’s error of law.” Kemp came from the U.S. Court of Appeals for the 11th Circuit.

Siegel v. Fitzgerald concerns the constitutionality of a law imposing different fees on Chapter 11 debtors based on the district in which the bankruptcy is filed. The question presented in Siegel asks: “Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Bankruptcy Clause by increasing quarterly fees solely in U.S. Trustee districts.” Siegel came from the U.S. Court of Appeals for the 4th Circuit.

The court had agreed to hear 59 cases during its 2021-2022 term as of Jan. 10. Four cases were dismissed, and one case was removed from the argument calendar. Eleven cases had not yet been scheduled for argument.

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Monthly tracker: Article III federal judicial nominations by president by days in office since 2001

Through Jan. 1, 2022, there were 890 authorized federal judicial posts and 76 vacancies. Seventy-four of those were for Article III judgeships. This report is limited to Article III courts, where appointees are confirmed to lifetime judgeships.

  1. In the past month, 12 judges have been confirmed
  2. In the past month, 11 judges have been nominated*.

*Note: This figure includes nomination announcements in addition to nominations officially received in the Senate.

By Jan. 1, 347 days in office, President Joe Biden (D) had nominated 73 judges to Article III judgeships. For historical comparison**: 

  1. President Donald Trump (R) had nominated 65 individuals, 44 of whom were ultimately confirmed to their positions.
  2. President Barack Obama (D) had nominated 36 individuals, 34 of whom were confirmed.
  3. President George W. Bush (R) had nominated 106 individuals, 52 of whom were confirmed.

**Note: These figures include unsuccessful nominations.

The following data visualizations track the number of Article III judicial nominations by president by days in office during the Biden, Trump, Obama, and W. Bush administrations (2001-present). 

The first tracker is limited to successful nominations, where the nominee was ultimately confirmed to their respective court:

The second tracker counts all Article III nominations, including unsuccessful nominations (for example, the nomination was withdrawn or the U.S. Senate did not vote on the nomination), renominations of individuals to the same court, and recess appointments. A recess appointment is when the president appoints a federal official while the Senate is in recess.

The data contained in these charts is compiled by Ballotpedia staff from publicly available information provided by the Federal Judicial Center. The comparison by days shown between the presidents is not reflective of the larger states of the federal judiciary during their respective administrations and is intended solely to track nominations by president by day.

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SCOTUS to hear arguments in COVID vaccine-related emergency appeals on Jan. 7

The Supreme Court of the United States (SCOTUS) scheduled oral arguments in and deferred decisions on emergency appeals related to two of the Biden administration’s COVID vaccination policies. This is a departure from the court’s typical procedure for resolving emergency appeals—known colloquially as the court’s shadow docket—where the court issues an order without hearing oral arguments. The arguments have been set for Jan. 7. The central question in the cases is whether the government can enforce the vaccine policies while litigation over the policies’ constitutionality continues in lower courts.

The first policy at issue is the administration’s COVID vaccine mandate for businesses with more than 100 employees, which requires qualifying businesses to either mandate and verify all its employees are vaccinated or test all unvaccinated employees for COVID weekly and require mask-wearing in the workplace. After the U.S. Court of Appeals for the 6th Circuit reinstated the mandate nationwide, several parties applied to the Supreme Court to block the 6th Circuit’s ruling. SCOTUS accepted two of these cases and will hear arguments in National Federation of Independent Businesses v. Department of Labor and Ohio v. Department of Labor.

The second policy at issue is the rule that health care workers who participate in federal Medicare and Medicaid programs be fully vaccinated. The Biden administration came to the court asking it to allow enforcement of the rule after lower courts blocked it in approximately half of the states. The court will hear oral arguments on this policy in Biden v. Missouri and Becerra v. Louisiana.

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Ballotpedia releases federal judicial vacancy count for December 2021

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies in Article III courts during the month of December through Jan. 1, 2022. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Nine judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. Court of Appeals vacancies

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.

The following maps show the number of vacancies on the United States Court of Appeals at Biden’s inauguration and as of Jan. 1, 2022.

New nominations

Biden has announced 11 new nominations since the November 2021 report.

Since taking office in January 2021, Biden has nominated 73 individuals to Article III positions.

New confirmations

There have been 12 new confirmations since the November 2021 report.

As of Jan. 1, 2022, the Senate had confirmed 40 of Biden’s judicial nominees—29 district court judges and 11 appeals court judges—since his term started in January 2021. To review a complete list of Biden’s confirmed nominees, click here.

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Biden has appointed second-most federal judges through Jan. 1 of a president’s second year in office

President Joe Biden (D) has appointed and the Senate has confirmed 40 Article III federal judges through Jan. 1 of his second year in office. This number is the second-most Article III judicial appointments through this point in all presidencies since President Ronald Reagan (R). The Senate had confirmed 19 of President Donald Trump’s (R) appointees at this point in his term.

The average number of judicial appointees per president through this period is 26.

By Jan. 1 of his second year, Reagan had the most appointees confirmed with 41. President Barack Obama (D) had the fewest confirmations with 13.

  1. The median number of Supreme Court appointees is one. Four presidents (Reagan, Clinton, Obama, and Trump) made one appointment. Three presidents (H.W. Bush, W. Bush, and Biden) had not appointed any.
  2. The median number of United States Court of Appeals appointees is six. Trump appointed the most with 12, followed by Biden with 11. Clinton and Obama appointed the fewest with three.
  3. The median number of United States District Court appointees is 22. Biden appointed the most with 29. Trump appointed the fewest with six.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

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President Biden announces two circuit court nominees

President Joe Biden (D) announced his intent to nominate two individuals to federal circuit courts on Dec. 23:

To date, Biden has nominated 73 individuals to Article III federal judgeships. Forty of the nominees have been confirmed. There were 67 Article III vacancies in the federal judiciary as of Dec. 23.

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U.S. Senate confirms nine Article III nominees, two Article I nominees to judgeships

The U.S. Senate confirmed nine of President Joe Biden’s (D) Article III judicial nominees and two of his Article I nominees in votes held on Dec. 17 and 18.

The Article III nominees confirmed to lifetime judgeships include:

The Article I nominees confirmed to 15-year terms include:

Article I tribunals are federal courts organized under Article I of the U.S. Constitution. The U.S. Court of Federal Claims was created in 1855 as the United States Court of Claims and was reorganized into its current form in 1982.

To date, 40 of Biden’s Article III nominees have been confirmed. For historical comparison since 1981, the following list shows the date by which the past six presidents had 40 Article III judicial nominees confirmed by the Senate:

  • President Donald Trump (R) – June 5, 2018
  • President Barack Obama (D) – Aug. 5, 2010
  • President George W. Bush (R) – Mar. 12, 2002
  • President Bill Clinton (D) – Mar. 10, 1994
  • President George H.W. Bush (R) – May 11, 1990
  • President Ronald Reagan (R) – Dec. 16, 1981

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Biden announces nine nominees to Article III courts; three to D.C. local courts

President Joe Biden (D) announced his intent to nominate nine individuals to Article III judgeships with lifetime terms on Dec. 15:

  • Jessica Clarke, to the U.S. District Court for the Southern District of New York
  • Sherilyn Garnett, to the U.S. District Court for the Central District of California
  • Hector Gonzalez, to the U.S. District Court for the Eastern District of New York
  • Kenly Kiya Kato, to the U.S. District Court for the Central District of California
  • Nina Morrison, to the U.S. District Court for the Eastern District of New York
  • William Pocan, to the U.S. District Court for the Eastern District of Wisconsin
  • Jennifer Rochon, to the U.S. District Court for the Southern District of New York
  • Fred Slaughter, to the U.S. District Court for the Central District of California
  • Sunshine Sykes, to the U.S. District Court for the Central District of California

To date, Biden has nominated 71 individuals to federal judgeships. Thirty-one of the nominees have been confirmed. There were 74 Article III vacancies in the federal judiciary as of Dec. 1.

As of his inauguration in January 2021, Biden inherited 46 Article III vacancies: two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy on the U.S. Court of International Trade. Biden announced his first federal judicial nominees on March 30.

Biden also announced his intent to nominate three individuals to Washington, D.C., local courts:

  • Errol Arthur, to the Superior Court of the District of Columbia
  • Leslie Meek, to the Superior Court of the District of Columbia
  • Carl Ross, to the Superior Court of the District of Columbia

Washington, D.C., has two local courts: the superior court—a trial court of general jurisdiction—and a court of appeals. Justices on these courts are nominated by the U.S. president after recommendation from the District of Columbia Judicial Nomination Commission. They then face confirmation by the U.S. Senate. D.C. judges are appointed to 15-year renewable terms.

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SCOTUS issues two opinions on Dec. 10

The Supreme Court of the United States (SCOTUS) issued opinions on Dec. 10 in two cases concerning Texas Senate Bill 8 (S.B. 8). To date, the court has issued decisions in five cases during the 2021-2022 term. Two of those cases were decided without argument.

United States v. Texas concerned whether the federal government had the right to challenge S.B. 8 in federal court. In a two-sentence per curiam opinion, the court held that the “writ of certiorari is dismissed as improvidently granted. The application to vacate stay presented to JUSTICE ALITO and by him referred to the Court is denied.” Justice Sonia Sotomayor dissented from this decision. A per curiam opinion is unsigned and delivered by the court as a whole.

In its opinion in Whole Woman’s Health v. Jackson, SCOTUS affirmed in part and reversed in part the order of the U.S. District Court for the Western District of Texas that denied the defendants’ motions to dismiss the case against them and remanded the case for further proceedings. SCOTUS found that pre-enforcement actions—lawsuits filed before S.B. 8 had been enforced—can proceed against certain defendants but not others. 

In an 8-1 decision authored by Justice Neil Gorsuch, the court held that abortion providers may file suit in federal court against state licensing officials to prevent them from enforcing the provisions of S.B. 8 under an exception to the sovereign immunity doctrine established in Ex parte Young (1908). Justice Clarence Thomas was the sole dissenting justice to this part of the opinion. The court further ruled by a vote of 5-4 that the abortion providers cannot file suit against state judges and clerks to block them from trying private lawsuits brought in accordance with S.B. 8. On this vote, Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett were in the majority, and Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. The court noted that it was not ruling on the constitutionality of S.B. 8 itself.

As of Dec. 10, the court had agreed to hear 53 cases during the current term. Four cases were dismissed, and one case was removed from the argument calendar. Twelve cases have not yet been scheduled for argument.

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