Author

Myj Saintyl

Myj Saintyl is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Robe & Gavel: Federal Judicial Vacancy Count released for February

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.



Twenty-seven upcoming Article III judicial vacancies

According to the latest vacancy data from the U.S. Courts, there were 27 total announced upcoming vacancies for Article III judgeships as of January 5, 2022. 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, Rachel Bloomekatz was nominated to replace Judge R. Guy Cole who retires on Jan. 9, 2023. There are currently 6 nominees pending for upcoming vacancies.

Eight 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 Jan. 9, 2023, when United States Court of Appeals for the Sixth Circuit Judge R. Guy Cole assumes senior status.

In addition to these 27 upcoming vacancies, there are 84 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 86 vacancies out of 890 active federal judicial positions.

President Biden has nominated 148 individuals to federal judgeships on Article III courts. Ninety-seven of those nominees have been confirmed. Of the 46 nominees going through the confirmation process, 29 are awaiting a vote in the U.S. Senate, 10 are awaiting a committee vote, and seven are awaiting a committee hearing.



Pat Ryan and Joe Sempolinsk win New York congressional special elections

Two special general elections were held for New York’s 19th and 23rd Congressional Districts on August 23, 2022. Pat Ryan (D) won the District 19 special election with 65,943 votes and defeated Marcus Molinaro (R). The special election was called after Antonio Delgado (D) left office to serve as the lieutenant governor of New York on May 25. Delgado served from 2019 to 2022.

Joe Sempolinski (R) won the District 23 special election with 38,749 votes and defeated Max Della Pia (D). The special election was called after Tom Reed (R) left office on May 10, after previously stating that he would not run for re-election. Reed served in Congress from 2010 to 2022. 

The filing deadline for both special elections passed on June 14. As of August 2022, 12 special elections have been held for the 117th Congress in 2021 and 2022. The U.S. House has 220 Democrats, 211 Republicans, and 4 vacancies. New York’s congressional delegation has 18 Democrats, 7 Republicans, and 2 vacancies. All 435 U.S. congressional seats are up for election on November 8. A majority in the chamber requires 218 seats. 

Additional reading:



Nikki Lucas and Manny De Los Santos win New York State Assembly special elections

Two special general elections were held for New York State Assembly Districts 60 and 72 on Feb. 15.

Nikki Lucas (D) won the District 60 special election with 2,074 votes, defeating Keron Alleyne (Working Families Party) and Marvin King (R, Conservative Party). The District 60 special election was called after Charles Barron (D) was sworn in as a New York City council member on Jan. 1. Barron served in the state Assembly from 2015 to 2021.

Manny De Los Santos (D) won the District 72 special election with 1,425 votes, defeating Edwin De La Cruz (R) and Nayma Silver-Matos (Uptown Rises). The District 72 special election was called after Carmen N. De La Rosa (D) was sworn in as a New York City council member on Jan. 1. De La Rosa served in the state Assembly from 2017 to 2021.

The filing deadline for both special elections passed on Jan. 18. Lucas and De Los Santos were sworn in on Feb 17. 

As of February, 39 state legislative special elections have been scheduled for 2022 in 19 states. Between 2011 and 2021, an average of 74 special elections took place each year. New York held 48 special elections from 2010 to 2021, the third-most of any state.

Entering the special election, the New York State Assembly had 105 Democrats, 43 Republicans, one independent, and one vacancy. A majority in the chamber requires 76 seats. New York has a Democratic trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. 

Additional reading:



Colby Fulfer wins Arkansas State Senate special election

A special general election was held for Arkansas State Senate District 7 on Feb. 8. Colby Fulfer (R) won the special election with 2,032 votes and defeated Lisa Parks (D), who received 1,998 votes. The Republican primary runoff was held on Jan. 11. The filing deadline passed on Nov. 22.

The special election was called after Lance Eads (R) left office to accept a position with Capitol Consulting Firm on Oct. 28. Eads served from 2017 to 2021. 

As of February, 36 state legislative special elections have been scheduled for 2022 in 17 states. Between 2011 and 2021, an average of 74 special elections took place each year. Arkansas held 15 special elections from 2010 to 2021.

Entering the special election, the Arkansas State Senate had seven Democrats, 26 Republicans, one independent, and one vacancy. A majority in the chamber requires 18 seats. Arkansas has a Republican trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.

Additional reading:



Special election to be held for Connecticut House District 5 on March 1

The special general election for the District 5 seat in the Connecticut House of Representatives is on March 1. Maryam Khan (D), Charles Jackson (R, Independent Party), Dean Jones (independent), and Lawrence Jaggon (independent) are competing in the special election. The deadline for parties to nominate candidates passed on Jan. 24. The write-in candidate filing deadline is on Feb. 15.

The special election was called after Brandon McGee (D) resigned on Jan. 7 to work on Gov. Ned Lamont’s (D) re-election campaign. McGee served from 2013 to 2022.

As of February 2022, 33 state legislative special elections have been scheduled for 2022 in 15 states. Between 2011 and 2021, an average of 74 special elections took place each year. Connecticut held 45 state legislative special elections from 2010 to 2021.

Additional reading:



Hubert Delany wins Connecticut House special election

A special general election was held for the District 144 seat in the Connecticut House of Representatives on Jan. 25. Hubert Delany (D) won the special election with 1,661 votes and defeated Danny Melchionne (R), who received 1,323 votes. 

Candidates running for special elections in Connecticut are nominated through party conventions. The filing deadline for write-in candidates passed on Jan. 11.

The special election was called after Caroline Simmons (D) left office to become mayor of Stamford, Connecticut, on Dec. 1. Simmons served from 2015 to 2021. 

As of January 2022, 31 state legislative special elections have been scheduled for 2022 in 15 states. Between 2011 and 2021, an average of 74 special elections took place each year. Connecticut has held 45 state legislative special elections from 2010 to 2021.

Entering the special election, the Connecticut House of Representatives had 95 Democrats, 53 Republicans, and three vacancies. A majority in the chamber requires 76 seats. Connecticut has a Democratic trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.

Additional reading: