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Brittony Maag

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

Ballotpedia releases federal judicial vacancy count for January 2022

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

HIGHLIGHTS

Five 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 Feb. 1, 2022.

New nominations

Biden has announced eight new nominations since the December 2021 report.

Since taking office in January 2021, Biden has nominated 82 individuals to Article III positions.

New confirmations

There have been five new confirmations since the December 2021 report.

As of Feb. 1, 2022, the Senate had confirmed 45 of Biden’s judicial nominees—32 district court judges and 13 appeals court judges. To review a complete list of Biden’s confirmed nominees, click here.

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Biden has appointed most federal judges through Feb. 1 of a president’s second year

President Joe Biden (D) has appointed and the Senate has confirmed 45 Article III federal judges through Feb. 1 of his second year in office. This is the most Article III judicial appointments through this point in all presidencies since 1981. The Senate had confirmed 24 of President Donald Trump’s (R) appointees at this point in his term.

The average number of federal judges appointed by a president through Feb. 1 of their second year in office is 29.

  • 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.
  • The median number of United States Court of Appeals appointees is six. Biden and Trump tied for the most appointees with 13 each, followed by Reagan with eight. Clinton appointed the fewest with three.
  • The median number of United States District Court appointees is 24. Biden and Reagan tied for the most appointees with 32 each. Trump and Obama appointed the fewest with 10 each.

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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SCOTUS releases March argument calendar

The Supreme Court of the United States (SCOTUS) on Jan. 28 released its March argument calendar for the 2021-2022 term, scheduling nine cases for argument. Two of the cases were consolidated for one hour of oral argument. In total, the court will hear eight hours of arguments between Mar. 21 and Mar. 30. 

Click the links below to learn more about the cases:

Mar. 21

  1. Morgan v. Sundance, Inc. concerns a circuit split regarding arbitration clauses, the Fair Labor Standards Act of 1938 (FLSA), and the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011).
  2. Berger v. North Carolina State Conference of the NAACP concerns whether North Carolina legislators may intervene to defend the state’s voter identification law in constitutional challenges and lawsuits concerning the Voting Rights Act.

Mar. 22

  1. Golan v. Saada concerns the interpretation of international law when a minor child is abducted across national borders during a domestic dispute.

Mar. 23

  1. ZF Automotive US, Inc. v. Luxshare, Ltd. (consolidated with AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States) concerns arbitration proceedings generally and, specifically, U.S. district courts’ authority to compel parties to produce evidentiary details in private arbitration for foreign or international tribunals.

Mar. 28

  1. LeDure v. Union Pacific Railroad Company concerns the meaning of a locomotive being in use for purposes of liability under the Locomotive Inspection Act.
  2. Southwest Airlines v. Saxon concerns the definition of transportation workers for purposes of exemption from the Federal Arbitration Act.

Mar. 29

  1. Torres v. Texas Department of Public Safety concerns the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and sovereign immunity.

Mar. 30

  1. Viking River Cruises, Inc. v. Moriana concerns a potential conflict between federal and state arbitration laws in certain types of arbitration proceedings.

To date, the court has agreed to hear 65 cases during its 2021-2022 term. Four cases were dismissed, and one case was removed from the argument calendar. Nine cases have not yet been scheduled for argument.

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SCOTUS accepts first cases for its 2022-2023 term

The Supreme Court of the United States (SCOTUS) accepted three cases for argument during its October 2022-2023 term on Jan. 24. These are the first cases SCOTUS has granted for its next term scheduled to begin on Oct. 3.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard (consolidated with Students for Fair Admissions, Inc. v. University of North Carolina) concerns the legality of institutions of higher education using race as a factor in admissions decisions. The questions presented to the court in the case are: “1. Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions? 2. Title VI of the Civil Rights Act bans race-based admissions that, if done by a public university, would violate the Equal Protection Clause. Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race neutral alternatives?” The case originated from the U.S. Court of Appeals for the 1st Circuit.

Axon Enterprise, Inc. v. Federal Trade Commission concerns whether federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission before plaintiffs raise such challenges during agency adjudication proceedings. The court was asked to consider the following question: “Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to ‘affirm, enforce, modify, or set aside’ the Commission’s cease-and-desist orders.”

Sackett v. Environmental Protection Agency concerns how to interpret the Clean Water Act to decide what land falls within the EPA’s wetland regulatory jurisdiction. The question presented in Sackett asks: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘Waters of the United States’ under the Clean Water Act.”

Both Axon and Sacket came from the U.S. Court of Appeals for the 9th Circuit.

Last week, SCOTUS accepted one additional case for its current term. The court granted Oklahoma v. Castro-Huerta on Jan. 21. The case concerns state authority in Indian Country and the scope of the U.S. Supreme Court’s ruling in the case McGirt v. Oklahoma (2020).

To date, the court has accepted three cases for its 2022-2023 term. The court has agreed to hear 65 cases during its current 2021-2022 term and so far has issued decisions in eight of those cases.

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President Biden nominates eight to Article III courts

President Joe Biden (D) nominated eight individuals to Article III judgeships with lifetime terms on Jan. 19:

To date, Biden has nominated 81 individuals to federal judgeships. Forty-one of the nominees have been confirmed.

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.

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SCOTUS concludes January sitting with arguments in four cases

The Supreme Court of the United States (SCOTUS) is hearing oral arguments in four cases during the week of Jan. 18, the second and final week of its January argument sitting for the 2021-2022 term.

The court is hearing arguments in person, though the court remains closed to the public in accordance with its policies related to the COVID-19 pandemic. SCOTUS is providing a live stream of the oral arguments on its website.

Jan. 18

Jan. 19

The court will next hear oral arguments during its February sitting, which is scheduled to begin Feb. 22.

To date, the court has agreed to hear 64 cases during its current term. Four cases were dismissed, and one case was removed from the argument calendar. Sixteen cases have not yet been scheduled for argument.

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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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