Through May 17, 2023, there were 890 authorized federal judicial posts and 75 vacancies. Seventy-three of those vacancies were for Article III judgeships. This report is limited to Article III courts, where appointees are confirmed to lifetime judgeships.
From April 2 to May 1, one judge was confirmed.
From April 2 to May 1, two judges were nominated.
By May 1, 832 days in office, President Joe Biden (D) had nominated 154 judges to Article III judgeships. For historical comparison*:
President Donald Trump (R) had nominated 248 individuals, 152 of whom were confirmed to their positions.
President Barack Obama (D) had nominated 180 individuals, 121 of whom were confirmed.
President George W. Bush (R) had nominated 254 individuals, 167 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second tracker counts all Article III nominations, including unsuccessful nominations (for example, the nomination was withdrawn or the U.S. Senate did not vote on the nomination), renominations of individuals to the same court, and recess appointments.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.
Correction: In our February, March, and April updates, there were errors in our nominations calculations. We regret the errors.
Now that SCOTUS has heard all of its arguments for this term, we await with bated breath as more opinions will start coming in. The suspense! In the meantime, dear reader, we’ve got some federal vacancy updates coming your way. Let’s gavel on in.
SCOTUS has accepted four new cases to its merits docket since our April 24 issue. To date, the court has agreed to hear nine cases for the 2023-2024 term.
Click the links below to learn more about these cases:
The Supreme Court will not hear any arguments this week. Click here to read more about SCOTUS’ current term.
Opinions
SCOTUS has not issued any opinions in cases argued on the merits since our previous edition.
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
May 11, 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 April 2 to May 1.
Highlights
Vacancies: There have been four new judicial vacancies since the April 1 report. There are 78 vacancies out of 870 active Article III judicial positions in courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 80 of 890 active federal judicial positions are vacant.
Nominations: There were two new nominations since the April 2023 report.
Confirmations: There was one new confirmation since the April 2023 report.
Vacancy count for May 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 named 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
Four 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 PresidentJoe Biden’s (D) inauguration to the date indicated on the chart.
The president has announced 160 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
New confirmations
As of May 1, 2023, the Senate had confirmed 120 of President Biden’s Article III judicial nominees—87 district court judges, 32 appeals court judges, and one Supreme Court justice—since his inauguration on Jan. 20, 2021.
Comparison of Article III judicial appointments over time by president (1981-Present)
Presidents have made an average of 103.1 judicial appointments through May 1 of their third year in office.
President Bill Clinton (D) made the most appointments through May 1 of his third year with 137. President George H.W. Bush (R) made the fewest with 74.
President Ronald Reagan (R) made the most appointments through one year in office with 41. President Barack Obama (D) made the fewest with 13.
President Donald Trump (R) made the most appointments in four years with 234. President Ronald Reagan (R) 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 June 12 with a new edition of Robe & Gavel. Until then, gaveling out!
Contributions
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.
According to the latest vacancy data from the U.S. Courts, there were 24 total announced upcoming vacancies for Article III judgeships. Article III judgeships refer to federal judges who serve on the U.S. Supreme Court, the U.S. Court of International Trade, or one of the 13 U.S. courts of appeal or 94 U.S. district courts. These are lifetime appointments made by the president and confirmed by the U.S. Senate.
These positions are not yet vacant but will be at some point in the future with every judge having announced his or her intent to either leave the bench or assume senior status. In the meantime, these judges will continue to serve in their current positions.
The president and Senate do not need to wait for a position to become vacant before they can start the confirmation process for a successor. For example, Ana de Alba was nominated to replace Judge Paul Watford after he resigns on May 31, 2023. There are currently two nominees pending for upcoming vacancies.
Six vacancy effective dates have not been determined because the judge has not announced the date he or she will leave the bench. The next upcoming scheduled vacancy will take place on May 15, 2023, when U.S. District Court for the Northern District of Texas Judge Barbara Lynn assumes senior status.
In addition to these 24 upcoming vacancies, there are 76 current Article III vacancies in the federal judiciary out of the 870 total Article III judgeships. Including non-Article III judges from the United States Court of Federal Claims and the United States territorial courts, there are 78 vacancies out of 890 active federal judicial positions.
President Biden has nominated 160 individuals to federal judgeships on Article III courts. Of those nominees, 121 have been confirmed and 34 are going through the confirmation process. Of those going through the confirmation process, 22 are awaiting a vote in the U.S. Senate, seven are awaiting a committee vote, and five are awaiting a committee hearing.
A great poet once wrote that parting is such sweet sorrow. We can’t help but ponder these words as we near the end of our 2022-2023 argument calendar. But we’re determined to go out with a bang as there are a number of arguments to discuss this week. So dry your tears, dear readers, and let’s gavel in.
April 24, 2023: SCOTUS will hear arguments in two cases.
April 25, 2023: SCOTUS will hear arguments in one case.
April 26, 2023: SCOTUS will hear arguments in one case.
April 28, 2023: SCOTUS will conference. A conference is a private meeting of the justices.
Grants
SCOTUS has accepted one new case to its merits docket since our April 17 issue. To date, the court has agreed to hear five cases for its 2023-2024 term.
Click the links below to learn more about this case:
The Supreme Court will hear four arguments this week. Click here to read more about SCOTUS’ current term.
Click the links below to learn more about these cases:
April 24, 2023
Dupree v. Younger concerns post-trial motions and the procedure for an appellate court to review an issue.
A post-trial motion is when a party requests for a court to make a decision without a trial.
The question presented: “Whether to preserve the issue for appellate review a party must reassert in a post-trial motion a purely legal issue rejected at summary judgment.”
The question presented for Yegiazaryan v. Smagin: “Does a foreign plaintiff state a cognizable civil RICO claim when it suffers an injury to intangible property, and if so, under what circumstances.”
The question presented for CMB Monaco v. Smagin: “Whether a foreign plaintiff with no alleged connection to the United States may nevertheless allege a “domestic” injury under RJR Nabisco sufficient to maintain a RICO action based only on injury to intangible property.”
For more information on RJR Nabisco, Inc. v. European Cmty, click here.
The questions presented: “Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Takings Clause?
“2. Whether the forfeiture of property worth far more than needed to satisfy a debt plus, interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment?”
In its October 2022 term, SCOTUS heard arguments in 60 cases during its. One case was dismissed. The court has scheduled 59 of the cases for argument. One case was removed from the argument calendar.
Opinions
SCOTUS has ruled on four cases since our April 17 edition. The court has issued rulings in 14 cases so far this term.
Click the links below to read more about the specific cases SCOTUS ruled on since our last edition:
The case concerns New York and New Jersey’s Waterfront Commission Compact and the Waterfront Commission of New York Harbor.
The outcome: In a unanimous decision, the Supreme Court ruled that despite opposition from the state of New York, New Jersey is allowed to unilaterally withdraw from the 1953 Waterfront Commission Compact. Justice Brett Kavanaugh delivered the opinion of the Court.
The case concerns Section 363(m) of the U.S. Bankruptcy Code and whether it limits appellate courts’ jurisdiction over certain cases that involve a sale order.
The outcome: The court vacated and remanded the decision of the U.S. Court of Appeals for the 2nd Circuit in a 9-0 ruling. The Supreme Court held that a district court has the authority to review the Mall of America’s petition which challenged Sears’ transfer of a lease for a space in the Mall of America to Transform Holdco LLC. Justice Ketanji Brown Jackson delivered the majority opinion.
To remand means to return a case or claim to a lower court for additional proceedings.
To vacate means to void, cancel, nullify, or invalidate a verdict or judgment of a court.
The case concerns whether U.S. district courts have the authority to criminally prosecute foreign states and their instrumentalities.
The outcome: In a unanimous opinion, the court affirmed in part, and vacated and remanded in part, the ruling of the U.S. Court of Appeals for the Second Circuit. The Supreme Court held that the district court has the authority to rule on this criminal case under 18 U.S.C. § 3231. The Court also affirmed the circuit court’s ruling but on different grounds than the circuit court. SCOTUS held that the Foreign Sovereign Immunities Act (FSIA) does not grant Turkiye Halk Bankasi (Halkbank) immunity because FSIA does not apply to criminal proceedings. Justice Brett Kavanaugh delivered the opinion of the Court. Justice Neil Gorsuch concurred in part and dissented in part and Justice Samuel Alito joined his opinion.
Reed v. Goertz was argued before the court on Oct. 11, 2022.
The case: Rodney Reed was convicted of murdering Stacey Sites in 1998. Reed was sentenced to death. In 2014, Reed filed an appeal in Texas state court for DNA testing. After his motion was denied, Reed continued to file appeals in the Texas judicial system. The courts denied his appeal each time. Reed then filed a lawsuit in U.S. district court claiming that the Texas courts had violated his constitutional rights. The district court dismissed Reed’s lawsuit. On appeal, the 5th Circuit affirmed the lower court’s decision. Reed petitioned the U.S. Supreme Court for review.
The outcome: The Supreme Court reversed the decision of the U.S. Court of Appeals for the 5th Circuit in a 6-3 ruling, holding that the statute of limitations on post-conviction DNA testing begins when litigation ends. Justice Brett Kavanaugh delivered the majority opinion of the court. Justice Clarence Thomas filed a dissenting opinion. Justice Samuel Alito also filed a dissenting opinion, joined by Justice Neil Gorsuch.
Federal court action
Nominations
President Joe Biden has announced no new Article III nominees since our April 17 edition.
The president has announced 160 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
Committee action
The Senate Judiciary Committee has reported seven new nominees out of committee since our April 17 edition.
The U.S. Senate has confirmed no new nominees since our previous edition.
As of April 1, 2023, the Senate had confirmed 119 of President Biden’s Article III judicial nominees—87 district court judges, 31 appeals court judges, and one Supreme Court justice—since his inauguration on January 20, 2021. To review a complete list of Biden’s confirmed nominees, click here.
Vacancies
The federal judiciary currently has 78 vacancies, 76 of which are for lifetime Article III judgeships. As of publication, there were 39 pending nominations.
According to the Administrative Office of U.S. Courts, there were 26 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.
For more information on judicial vacancies during President Joe Biden’s term, click here.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
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 our list for updates on federal judicial nominations.
Looking ahead
We’ll be back on May 8th with a new edition of Robe & Gavel. Until then, gaveling out!
Contributions
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.
We’ve got a jam-packed week ahead of us as we near the end of the argument calendar for this term. So grab a seat, dear readers, and let’s gavel on in!
April 17, 2023: SCOTUS will hear arguments in two cases.
April 18, 2023: SCOTUS will hear arguments in two cases.
April 19, 2023: SCOTUS will hear arguments in one case.
April 21, 2023: SCOTUS will conference. A conference is a private meeting of the justices.
Grants
SCOTUS has not accepted any new cases to its merits docket since our April 10 edition.
Arguments
The Supreme Court will hear arguments in five cases this week. Click here to read more about SCOTUS’ current term.
Click the links below to learn more about these cases:
April 17, 2023
Pugin v. Garland (consolidated with Garland v. Cordero-Garcia) concerns the Immigration and Nationality Act, specifically, 8 U.S.C. §§ 1101 and 1227.
The questions presented for Pugin v. Garland: “1. Whether a state offense-like petitioner’s accessory-after-the-fact offense here-that does not involve interference with an existing official proceeding or investigation may constitute an ‘offense relating to obstruction of justice.’
“2. Whether, assuming that the phrase ‘offense relating to obstruction of justice’ is deemed ambiguous, courts should afford Chevron deference to the Board of Immigration Appeals’ interpretation of that phrase.”
The questions presented: “Whether Sections 11 and 12(a)(2) of the Securities Act of 1933 require plaintiffs to plead and prove that they bought shares registered under the registration statement they claim is misleading.”
April 18, 2023
Groff v. DeJoyconcerns Title VII of the Civil Rights Act of 1964 and an employer’s religious accommodations.
The questions presented: “1. Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title. VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 2. Whether an employer may demonstrate ‘undue hardship on the conduct of the employer’s business’ under Title VII merely by showing that the requested accommodation burdens the employee’s co-workers rather than the business itself.”
The questions presented: “Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it ‘knowingly’ violated the False Claims Act.”
April 19, 2023
Counterman v. Coloradoconcerns the First Amendment. Specifically, how to determine whether death threats made on a social media platform are true threats.
The questions presented: “Whether, to establish that a statement is a ‘true threat’ unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective ‘reasonable person’ would regard the statement as a threat of violence.”
In its October 2022 term, SCOTUS has agreed to hear 60 cases. One case was dismissed. The court scheduled 59 of the cases for argument. One case was removed from the argument calendar.
Opinions
SCOTUS has ruled on one case since our April 10 edition. The court has issued rulings in 10 cases so far this term. Fifty cases are still under deliberation.
Click the links below to read more about the specific case SCOTUS ruled on since April 10:
The case: Axon, a body camera company, acquired a competitor. The Federal Trade Commission (FTC) ordered Axon to undo the acquisition on antitrust grounds. Axon sued, arguing that the FTC’s administrative proceeding violated due process rights, that the structure of the FTC’s double for-cause removal protections afforded to its administrative law judges (meaning that there are restrictions on the for-cause removal process for the judges) violates Article II of the U.S. Constitution, and that the acquisition did not violate antitrust law. The district court dismissed the case, and the U.S. Court of Appeals for the Ninth Circuit affirmed the decision.
The outcome:
In a unanimous decision, the Supreme Court reversed the decision of the U.S. District Court of the Ninth Circuit, affirmed the decision of the U.S. District Court of the Ninth Circuit, and remanded the cases for further court action.
To remand means to return a case or claim to a lower court for additional proceedings.
The Supreme Court concluded that a district court can review challenges to the constitutionality of Securities and Exchange Commission and Federal Trade Commission decisions. Justice Elena Kagan wrote the majority opinion and Justice Clarence Thomas wrote a concurring opinion.
Federal court action
Nominations
President Joe Biden has announced two new Article III nominees since our April 10 edition.
The president has announced 160 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
Committee action
The Senate Judiciary Committee has reported no new nominees out of committee since our April 10 edition.
Confirmations
The U.S. Senate has confirmed no new nominees since our previous edition.
As of April 1, 2023, the Senate had confirmed 119 of President Biden’s Article III judicial nominees—87 district court judges, 31 appeals court judges, and one Supreme Court justice—since his inauguration on January 20, 2021. To review a complete list of Biden’s confirmed nominees, click here.
Vacancies
The federal judiciary currently has 77 vacancies, 75 of which are for lifetime Article III judgeships. As of publication, there were 35 pending nominations.
According to the Administrative Office of U.S. Courts, there were 24 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.
For more information on judicial vacancies during President Biden’s term, click here.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
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 our list for updates on federal judicial nominations.
Looking ahead
We’ll be back on April 24 with a new edition of Robe & Gavel. Until then, gaveling out!
Contributions
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.
Through April 13, 2023, 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.
In the past month, 10 judges have been confirmed
In the past month, four judges have been nominated.
By April 1, 802 days in office, President Joe Biden (D) had nominated 152 judges to Article III judgeships. For historical comparison*:
President Donald Trump (R) had nominated 246 individuals, 150 of which were ultimately confirmed to their positions.
President Barack Obama (D) had nominated 178 individuals, 119 of which were confirmed.
President George W. Bush (R) had nominated 223 individuals, 140 of which 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 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.
Correction: In our February, March, and April updates, there were errors in our nominations calculations for President Joe Biden. We have fixed these and regret the errors.
SCOTUS has accepted one new case to its merits docket since our March 27 issue. To date, the court has agreed to hear four cases for the 2023-2024 term.
Click the links below to learn more about these cases:
Acheson Hotels, LLC v. Laufer originated from the U.S. Court of Appeals for the First Circuit and concerns the Americans with Disabilities Act. SCOTUS will examine whether someone has a right to sue a place of public accommodation for failure to provide disability accessibility information even if they do not intend to visit the establishment.
Arguments
The Supreme Court will not hear any arguments this week. Click here to read more about SCOTUS’ current term.
In its October 2022 term, SCOTUS has agreed to hear 60 cases. One case was dismissed. The court scheduled 59 of the cases for argument. One case was removed from the argument calendar.
Opinions
SCOTUS has ruled on one case since our March 27 edition. The court has issued rulings in nine cases so far this term. Fifty-one cases are still under deliberation.
Click the links below to read more about the specific case SCOTUS ruled on since March 27:
The case: Larry Steven Wilkins and Jane Stanton own property in Ravalli County, Montana, that is subject to a U.S. Forest Service-managed easement. In 2017, Wilkins, Stanton, and their neighbors requested that the Forest Service address problems related to alleged sporadic maintenance and increased use of the easement. In response, the Forest Service said all management decisions were at its sole discretion and not beholden to the landowners. The petitioners sued in the U.S. District Court under the Quiet Title Act. The government moved to dismiss for lack of subject matter jurisdiction, arguing the Quiet Title Act’s statute of limitations had passed. The District Court and the 9th Circuit both ruled the petitioners did not have a case because the act’s statute of limitations was jurisdictional.
The outcome: The Supreme Court had to determine if the 12-year statute of limitations was a jurisdictional bar or a claims-processing rule. If it was determined to be a jurisdictional bar, then Wilkins and Stanton could not sue the government because the statute of limitations had expired. A claims-processing rule helps progress legal disputes by requiring that parties take certain steps at specific times. It is possible for petitioners to convince a court to forgive a claims-processing rule. A jurisdictional bar prevents trial courts from hearing cases after a specific time.
In a 6-3 vote, the court overruled the lower court decisions, holding that the 12-year statute of limitations in section 2409a(g) of the Quiet Title Act is a claims-processing rule. This means that Stanton and Wilkins have the opportunity to convince their trial court to excuse the late filing. Justice Sonia Sotomayor wrote the majority opinion. Justice Clarence Thomas wrote a dissenting opinion that was joined by Chief Justice John Roberts and Justice Samuel Alito.
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
April 14, 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 March 2, 2023, to April 1, 2023.
Highlights
Vacancies: There have been two new judicial vacancies since the March 1, 2023 report. There are 74 vacancies out of 870 active Article III judicial positions in courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 76 of 890 active federal judicial positions are vacant.
Nominations: There were four new nominations since the March 1, 2023 report.
Confirmations: There were 10 new confirmations since the March 1, 2023 report.
Vacancy count for April 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 named as 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
Two 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 PresidentJoe Biden’s (D) inauguration to the date indicated on the chart.
Since taking office in January 2021, President Biden has nominated 158 individuals to Article III positions. For more information on the president’s judicial nominees, click here.
New confirmations
As of April 1, 2023, the Senate had confirmed 119 of President Biden’s Article III judicial nominees—87 district court judges, 31 appeals court judges, and one Supreme Court justice—since his inauguration on Jan. 20, 2021.
There were 10 new confirmations since the March 1 report:
Comparison of Article III judicial appointments over time by president (1981-Present)
Presidents have made an average of 101 judicial appointments through April 1 of their third year in office.
President Bill Clinton (D) made the most appointments through April 1 of his third year with 137. President George H.W. Bush (D) made the fewest with 74.
President Donald Trump (R) made the most appointments in four years with 234. President Ronald Reagan (R) made the fewest through four years with 166.
President Ronald Reagan (R) made the most appointments through one year in office with 41. President Barack Obama (D) made the fewest with 13.
President Bill Clinton (D) made the most appointments in two years with 128. President Barack Obama (D) made the fewest with 62.
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 17 with a new edition of Robe & Gavel. Until then, gaveling out!
Contributions
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.
According to the latest vacancy data from the U.S. Courts, there were 25 total announced upcoming vacancies for Article III judgeships as of April 5, 2023. Article III judgeships refer to federal judges who serve on the U.S. Supreme Court, the U.S. Court of International Trade, or one of the 13 U.S. courts of appeal or 94 U.S. district courts. These are lifetime appointments made by the president and confirmed by the U.S. Senate.
These positions are not yet vacant but will be at some point in the future with every judge having announced his or her intent to either leave the bench or assume senior status. In the meantime, these judges will continue to serve in their current positions.
The president and Senate do not need to wait for a position to become vacant before they can start the confirmation process for a successor. For example, S. Kato Crews was nominated to replace Judge Raymond P. Moore after he assumes senior status on June 20, 2023. There are currently two nominees pending for upcoming vacancies.
In addition to these 25 upcoming vacancies, there are 74 current Article III vacancies in the federal judiciary out of the 870 total Article III judgeships. Including non-Article III judges from the United States Court of Federal Claims and the United States territorial courts, there are 76 vacancies out of 890 active federal judicial positions.
As of April 5, 2023, President Biden has nominated 158 individuals to federal judgeships on Article III courts, and 119 of those nominees have been confirmed. Of the 28 nominees going through the confirmation process, 14 are awaiting a vote in the U.S. Senate, eight are awaiting a committee vote, and six are awaiting a committee hearing.
Where has the time gone, dear reader? We’re already nearing the end of our March sitting. As always, there’s a lot to catch up on, so let’s gavel on in.
The questions presented: “Whether enablement is governed by the statutory requirement that the specification teach those skilled in the art to ‘make and use’ the claimed invention, 35 U.S.C. § 112, or whether it must instead enable those skilled in the art ‘to reach the full scope’ of claimed embodiments’ without undue experimentation-i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial ‘time and effort,’ Pet.App. 14a (emphasis added).”
The questions presented: “Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.”
March 28, 2023
Smith v. The United States concerns the proper remedy for when an accused offender has been tried in the wrong court.
The questions presented: “Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the Fifth and Eighth Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the Sixth, Ninth, Tenth, and Eleventh Circuits have held.”
The questions presented: “Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that ‘no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,’ is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).”
March 29, 2023
Samia v. United Statesconcerns the right of a defendant to confront the witnesses against them, known as the Confrontation Clause of the U.S. Constitution’s Sixth Amendment.
The questions presented: “Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.”
The questions presented: “…whether the § 7609(c)(2)(D)(i) exception applies only when the delinquent taxpayer owns or has a legal interest in the summonsed records (as the Ninth Circuit holds), or whether the exception applies to a summons for anyone’s records whenever the IRS thinks that person’s records might somehow help it collect a delinquent taxpayer’s liability (as the Sixth Circuit, joining the Seventh Circuit, held below).”
Opinions
SCOTUS has ruled on one case since our March 20 edition. The court has issued rulings in eight cases so far this term. Fifty-two cases are still under deliberation.
Click the links below to read more about the specific cases SCOTUS ruled on since March 20:
The case: The case concerns whether a student with special needs must first exhaust the administrative adjudication procedures required by IDEA before bringing an educational complaint in federal court under another statute, such as the ADA, when IDEA does not provide the relief they seek.
The outcome: The Supreme Court reversed the decision from the U.S. Court of Appeals for the Sixth Circuit and remanded the case for further proceedings. The Supreme Court unanimously held that IDEA’s administrative requirements did not prevent Perez from moving forward with his ADA complaint because IDEA does not address the type of compensatory relief sought by Perez. The opinion was written by Justice Neil Gorsuch.
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
March 27, 2023: SCOTUS will hear arguments in two cases.
March 28, 2023: SCOTUS will hear arguments in two cases.
March 29, 2023: SCOTUS will hear arguments in two cases.
March 31, 2023: SCOTUS will conference. A conference is a private meeting of the justices.
Nominations
President Joe Biden (D) has announced four new Article III nominees since our March 20 edition. The president has announced 158 Article III judicial nominations since taking office Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
The federal judiciary currently has 75 vacancies, 73 of which are for lifetime Article III judgeships. As of publication, there were 35 pending nominations.
According to the Administrative Office of U.S. Courts, there are 35 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.
For more information on judicial vacancies during President Biden’s term, click here.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
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 our list for updates on federal judicial nominations.
Looking ahead
We’ll be back on April 10 with a new edition of Robe & Gavel. Until then, gaveling out!
Contributions
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.
Through March 24, there were 890 authorized federal judicial posts and 75 vacancies. Seventy-three of those were for Article III judgeships. This report is limited to Article III courts, where appointees are confirmed to lifetime judgeships.
Through March 24, 118 judges have been confirmed
Through March 24, 158 judges have been nominated.
By March 1, 771 days in office, President Joe Biden (D) had nominated 148 judges to Article III judgeships. For historical comparison*:
President Donald Trump (R) had nominated 237 individuals, 142 of which were ultimately confirmed to their positions.
President Barack Obama (D) had nominated 171 individuals, 113 of which were confirmed.
President George W. Bush (R) had nominated 214 individuals, 131 of which were confirmed.
*Note: These figures include unsuccessful nominations and renominations.
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.
